1. These appeals, and the suit out of which they arise, relate to the right to the permanently settled estates of Nidadavole and Medur in the Kistna and Godavari Districts.
2. The following genealogical tree shows the relationship of the several members of the family.
Narayya Appa Row (1)
Vankata Narasimha Ramachandra Narasimha
Appa Row (2) Appa Row (3) Appa Row (4)
| | |
Narayya Appa Sobhanadri |
Row (5) Appa Row (6) |
| | | |
| Simhadri Narayya Venkatari
| Appa Row (7) Appa Row (8) Appa Row (9)
| Appa Row (16)
| | | | | |
Narayan Ranhgyya Venkata Narasimha Vinkatadri Simhadri Venkatramayya
Appa Row Appa Row Appa Row (12) Appa Row (13) Appa Row (14) Appa Row (15)
(10) (11) (dead) (dead) (dead)
given away in
3. The three brothers, Venkatanarasimha (2), Ramachendra (3), and Narasimha (4) were divided. The last admitted male owner of Nidadavole estate was Narayya Appa Row (5) who died in 1864, leaving behind him as his only heirs two widows, Papamma Row and Chinnamma Row. These widows put forward a will by their deceased husband, executed on the day before his death, which provided for the equal division of his estate between them, and authorized them to adopt a son to him. They continued in joint possession and enjoyment of the estate until the death of Chinnamma Row in 1881 or 1883, after which Papamma Row alone enjoyed the estate. In 1888 Venkataramayya (15), who was the sole owner of the Medur estate, died and the Court of Wards then took possession of the estate on be-' half of Yenkataramayya's only son, Narayya (17) who was then a child. In 1890 Papamma Row adopted this Narayya who was then sole owner of the Medur estate. The minor, Narayya, died unmarried in August 1895, his sole heir being his adoptive mother Papamma Row. It was immediately after this that the first of the suits now before us, viz., O.S. No. 35 of 1895, was filed before the Subordinate Judge of Masulipatam by Venkayamma, the natural mother of the minor Narayya against Papamma Row and the Court of Wards. In this suit she sought to recover possession of the Medur estate on the ground that the adoption of Narayya by Papamma Row was invalid for various reasons, and that, even if it was not invalid, Narayya, by being adopted, was divested of all interest in the Medur estate. While this suit was pending Venkayamma died, but the suit was continued by Rangayya (11) and Venkatanarasimha (12) as the reversionary heirs of her late husband, Venkataramayya (15), who was also their own divided brother. In that suit the Subordinate Judge held that the will of Narayya (5 under the authority of which Papamma Row made the adoption, was genuine, and that the adoption of the minor Narayya (17) was not invalid for any reason, and also that it did not operate to divest Narayya (17) of the estate of Medur, which therefore passed on his death to Papamma Row, as his adoptive mother. He (the Subordinate Judge) therefore dismissed the suit on the 2nd December 1899. It is against this decree that Venkatanarasimha (12) and Rangayya (11) have respectively filed the present Appeals Nos. 122 & 123 of 1900. Three days after that decree was passed, i.e., on the 5th December 1899, Papamma Row died, and on the 14th of the same month the second of the suits now before us, viz., O.S. No. 44 of 1899, was launched before the District Judge by Parthasarathi, (16). It will be seen by a reference to the genealogical tree that this Parthasarathi (16) and Rangayya (11) and Venkatanarasimha (12) are all equally nearly related to Narayya (5), the late husband of Papamma Row, and they were, in fact, his only*reversionary heirs when Papamma Row died. They were also the only reversionary heirs of the minor Narayya (17) considered as the adopted son of Narayya (5) and of Papamma Row, and they were all equally nearly related to him. Parthasarathi in his suit (O.S. No. 44) therefore claimed, as a reversioner, to be entitled to a one-third share in the estates of Nidadavole and Medur, Rangayya and Venkatanarasimha being also each entitled to a one-third share, and he sued to recover his share from them as they had taken possession of the estates on Papamma Row's death. It will further be seen by reference to the genealogical tree that the nearest reversioners of the minor Narayya (17), considered as a member of his natural family, were his father's brothers, Rangayya (11) and Venkatanarasimha (12) and that Parthasarathi (16) was only a distant reversioner. If, therefore, the adoption of the minor Narayya (17) by Papamma Row was invalid, or if, that adoption operated in law to divest the minor of the Medur estate, both of which contentions, however, Parthasarathi (16) denied, then Parthasarathi could have no right as a reversioner to a share in that estate. He, therefore, prayed that if either of those contentions were established, he might be decreed his one-third share in Nidadavole alone.
4. The main contentions of the defendants Rangayya (11) and Venkatanarasimha (12) were that the will of Narayya (5) was a forgery, and that for this and other reasons the adoption of Narayya (17) by Papamma Row was invalid, and that, even if valid, it operated to divest Narayya (17) of the Medur estate to which therefore Parthasarathi could have no claim. Rangayya also contended that Nidadavole was an impartible estate and descended to him alone under the rule of primogeniture, as he was the senior of the reversioners of the last male owner, whether that owner was Narayya (5) or Narayya (17), and also that if Narayya (17) brought the estate of Medur with him into the Nidadavole family by virtue of his adoption, it became impressed with the character of impartibility and therefore passed to him alone with Nidadavole.
5. The District Judge found against Rangayya's pleas founded on the alleged impartibility of Nidadavole; but he found that the alleged will of Narayya (5) was a forgery, and that for this and various other reasons the adoption of Narayya (17) by Pupamma How was invalid. He, therefore, dismissed Parthasarathi's suit so far as the Medur estate was concerned, but gave him and 2nd defendant Venkatanarasimha (12) each a decree for a one-third share of the Nidadavole estate.
6. It is against this decree that Parthasarathi and Rangayya respectively have brought the present Appeals Nos. 41 and 32 of 1904.
7. Counsel for the appellant in Appeal No. 41 requested that that Appeal and No. 32 might to be tried separately from Appeals No. 122 and 123 of 1900, but it seems to us more convenient to deal with all four appeals in one judgment.
8. The main questions, then, which arise for decision are whether the Nidadavole estate is impartible, or follows the ordinary Hindu Law which governs the descent of partible estates; and whether the adoption of Narayya (17) is invalid. This latter question depends mainly on whether the will of Narayya (5) is genuine or not, whether it was a sufficient authority to Papamma Row to make the adoption, and whether the adoption is invalid by reason of Papamma Row having been coerced into making it by a threat of being criminally prosecuted if she did not do so.
9. Before discussing the evidence as to whether the Nidadavole estate is partible or impartible, we may briefly refer to two former suits in which the question has been before the Courts. In O.S. No. 17 of 1871, which is generally referred to as the first Nuzvid suit, Venkatanarasimha (12) brought a suit against his five brothers (as shown in the genealogical tree) for his one-sixth share of the new Nuzvid estate which was carved out of the old Nuzvid estate and granted under a separate sanad to their grandfather, Ramachandra (3) in 1802. His claim was resisted on the ground that the old Nuzvid estate, as it existed prior to 1802, was impartible, and that the new Nuzvid estate retained the same quality notwithstanding the grant to Ramachandra (3) in 1802. The Courts in this country upheld the defence, but the Privy Council on appeal reversed their decrees and allowed Venkatanarasimha's claim on the ground that though the old Nuzvid estate was admittedly descendible to a single heir, yet that quality did not attach to the new Nuzvid estate granted to Ramachandra (3) who had never previously held an estate descendible to his eldest male heir. Looking to the terms of the sanad and all the circumstances of the case, they found that the new Nuzvid estate was held as an ordinary Zamindari descendible to Ramachandra's heirs according to the ordinary Hindu Law, and therefore partible. But the Privy Council expressly refrained from giving any opinion as the quality of the Nidadavole estate for which a sanad was at the same time and in the same terms issued to Venkatanarasimha (2) the elder brother of Ramachandra (3). Raja Venkata Rao v. Court of Wards I.L.R. (1879) 2 M. 128.
10. In the second Nuzvid suit (O.S. No. 2 of 1873) the three younger brothers of Venkatanarasimha (12) sued for their respective shares of the new Nuzvid estate, and this Court, on the evidence then before it, held that the old estate prior to 1802 was impartible, and that the new Nuzvid estate was also impartible. But the decision of the Privy Council in the prior Nuzvid suit was given soon after this, and was accepted by the parties as deciding their rights in the second suit also.
11. It is not contended that the decisions in those suits as to the quality of the old Nuzvid estate with regard to impartibility renders the matter resjudicata in the present suits - since the parties in the present suits are different. A great deal of evidence has now been adduced in addition to what was then before the Courts, so that the decision in those cases cannot now be even regarded as opinions of great authority, though, no doubt, we are bound to give the most respectful consideration to the reasons given for the decisions on the evidence then before the Courts.
12. As observed by Sir Richard Couch in the case of Srimantu Raja Yarlagadda, Mallikarjuna v. Srimantu Raja Yarlagadda Durga L.R. 17 I.A. 134, ' the question whether an estate is subject to the ordinary 'Hindu Law of succession, or descends according to the rule' of primogeniture must be decided in each case according to the 'evidence given in it.' This rule was lately re-affirmed by the Privy Council in the Udayarpaliam case.
13. We propose, therefore, first to refer briefly to the origin of the Nuzvid Estate, and then to consider in detail the manner in which it was held when the British took possession of the country in the middle of the eighteenth century and onwards from that period until the present time. We shall find that throughout a great part of that time the estate was 'held in shares by more than one member of the family at a time, and that the conduct of the family negatives any consciousness that the estate was by family custom impartible and descendible to a single heir, and we shall thus be led to the conclusion that the estate is subject' to the ordinary rule of Hindu Law in regard to coparcenary property and is partible.
14. The Nuzvid estate is situated in that part of the country known as the Northern Circars, and prior to 1765 was subject to the Mahomedan Subhadar or Viceroy of the Deccan, the seat of whose power was at Hyderabad. In that year Lord Clive obtained for the East India Company a grant of that part of them in which Nuzvid is situated, and in the following year the grant was confirmed by a treaty entered into with the Nizam.
15. The earliest authentic account of Nuzvid is found in Mr. Grant's 'Political Survey of the Northern Circars,' written in 1783 and published as an Appendix (p. 205) to the Fifth Report of the Select Committee on the Affairs of the East India Company. Mr. Grant had been for many years resident in Hyderabad and had special opportunities of acquiring correct information. He writes : - 'Nujere, or Noozed, the capital *** of 'the extensive deshmooky, supposed to appertain by right of 'Sanads, to Macca Narayana Appa Row of the Velarna caste. 'Macca Venkayya, the first of this family, came from the 'Carnatic, and rented five or six villages of Golapille or 'Nujere in 1652; twelve years after, the next in succession 'obtained a lease of the whole pergunnah, and took the name 'of Appa Row, in addition to the local patronymic of Macca. 'In the beginning of the present century the fifth descendant, 'by the actual Zemindari, grants of Amildars was for a time 'in possession of the several districts which actually compose 'this territorial jurisdiction, but under the Government of 'Rustum Khan, the whole family were expelled, and the lands 'put under the immediate management of Tahsildars for twelve 'successive years afterwards. However, on a change of the 'provincial ruler, an upstart of the name of Venkiah was produced, under the patronage of the Condana family who were 'the acting farming superintendents, and then of considerable 'influence with Ali Kuli Khan, the Amildar, as the heir of the 'line to Appa Row, and in that capacity, was reinstated in 1738 'in part of the Zemindari jurisdiction. Jaggiah, the brother 'of this pretender who succeeded, died a prisoner in Bussy's. 'camp before Khalburga in 1755 - 6; from this time forward, 'Venkatadri Appa Row, another pretender through the management of Condana, and influence of Hussein Ali Khan, 'was put in possession, in virtue of Amildari Sanads, but 'participated the management of his deshmooky, with his 'brother Narayya, until the year 1772; when dying, the latter 'assumed the Zemindari by sufferance of English, without any 'other right, and under the same authority, was expelled, as a 'rebel, in the present year, 1783.'
16. This account indicates that when the British took possession of the country in 1766, Venkatadri and his brother, Narayya, were in joint posession of the Zemindari, having been reinstated through the good offices of the Gondana people, who were the acting farmers of the revenue, and by the authority of Hussain Ali Khan, the Nizam's Amildar, or Chief Civil officer, in that part of the country. An attempt was made to show that the younger brother, Narayya, was only a manager under his elder brother, but we think that the evidence very clearly negatives this contention. Paupiah, the representative of the Condana family, and this Naryya some years later had a dispute regarding their respective right to the Char Mahal villages; and in his petition (Exhibit MMMMMMMM (1) the Circuit Committee which investigated the claim, Paupiah states that his ancestor, Iyenah 'brought them both (i.e., Venkatadri and his brother, Narayya) and substituted them in the Zemindari of Nuzvid, from which time they continued to manage their country &c.;' This would indicate that from the beginning both the brothers had an equal interest, not that the younger became the manager of his elder brother as regards part of the estate. There is a great mass of evidence to show that each brother granted Inams to Brahmins and others from the part of the estate in his possession. It was observed by this Court in the judgment in the second Nuzvid suit that such grants are sometimes made by younger members of a family without authority, and that Zemindars are often unwilling to resume them owing to their regard for the grantors, or the piety and learning of the grantees. This, no doubt, may explain occasional grants of small extent, but it is not easy to accept it as a sufficient explanation of the numerous grants in the present case. We would especially refer to a Exhibit MMMMMMMM (2) which is a Zemindari Sanad granted to four members of the Condana family and their heirs for ever in 1757 - 8 for two parganahs of the Char Mahal. It is a grant by both the brothers jointly and by one Boochemmah. Who this Boochammah is does not appear, but she was probably a widow of a member of the family who was regarded as having a coparcenary right. She does not sign the grant, but it is signed and sealed by both the brothers as being equally grantors. Another important Sanad signed and sealed by both the brothers Exhibit DDDDDDDDD, whereby the mirasi or hereditary office of Desapandiya of the Grollapalle Parganah was granted to certain persons, the former Sanads in favour of other persons being cancelled as issued in error.
17. Again Exhibit TTTTTT is a grant in 1769 by Narayya alone to a certain Brahmin, authorizing him to collect certain grain fees for ever from all the villages in the Parganah of Baharuzhally. There are a number of other grants by Narayya alone between 1756 and 1769.
18. Looking to the number and character of these grants, we think that they are important evidence that Narayya had a share in the Zamindari. It is difficult to suppose that they could all have been made by him as a younger brother without any coparcenary right.
19. Exhibit 196 is an agreement entered into in 1766 between General Caillard, who commanded the Company's troops, and the Zamindars of Ellore and Mustaphanagur, i.e., Nuzvid, whereby the latter promised to assist the former with troops and supplies. The printed papers in this suit do not show who signed this agreement, but it is stated at page 298 of the Kistna Manual that it is signed by both Venkatadri and Narayya. After the British took possession of the whole country they leased it out to Hussein Ali Khan from 1766 to 1769. During the time he was renter, the two brothers paid their quotas of the revenue due by the Nuzvid Zemindari through him. Exhibit FFF shows that it was Narayya, the younger brother, who paid up the greater part of the large arrears due by himself and Venkatadri, and the balance still due was shown as due by both. After the expiry of the lease to Hussein Ali Khan we find from the Register of cowles kept in the Collector's Office (Exhibits GGG(2), GGG(1) and KKK) that the Zemindari was leased in equal shares to each brother, first for one year (1769-70) and afterwards for three years (1770-2). Each brother was granted a separate cowle for certain named villages 'and all other places now in his possession exclusive of the share of' the other brother. Each brother is equally styled 'Zamindar of Nuzvid'. The 'tribute' shown as due by each brother is Rs. 48,000 and each is granted a similar complementary deduction for 'presents and allowances'. It seems to us impossible to get over the effect of these documents by saying that Narayya was merely managing half the Zemindari for his brother.
20. Again in the Collector's letter to Government on the 23rd March 1771 (Exhibit LLL) we find it stated that the Zemindari of Nuzvid was rented to the Muglatore Zemindar by Appa Row and Narayana Row, both brothers being treated as jointly entitled to rent the Zemindari. In this document we also find that the sums due from Appa Row and Narayana Row, on account of the Nuzvid Zemindari and the Ellore Haveli are stated, and it has to be noted that the sum due by each brother was on account of his half share showing clearly that the Government recognised that each brother had a right to a specific half share both in the Zemindari and in the Ellore Haveli. The letter in which these statements are recorded is dated March 1771. Exhibit NNNNNNNN is a receipt granted for a sum of money received from a Sowcar on account of the revenue of the Nuzvid Estate, and in it the sums due from Appa Row and Narayana Row are shown separately and are both entered as Rs. 20,000. In Exhibit OOOOOOOO also reference is made as to the payment of Rs. 7,000 on account of Rajah Appa Row and Rajah Narayana Row, who are treated as joint Zemindars.
21. But more important than all these are the proceedings of the Government authorities on the death of Venkatadri in 1771. These are contained in Exhibits MMM and NNN. Exhibit MMM is an extract from the proceedings of the Chief in Council at Masulipatam, dated September 1771, and runs as follows:
Extract from Masulipatam consultations, dated September 1771.
He acquaints the Board that he has received advice of the 'death of Appa Row, joint Zemindar of Nuzvid with Narayana 'Row; that he died without issue and that the next heir is 'Narayana Row who was his full and only brother.
Exhibit NNN is an extract from the proceedings of Government thereon, dated September 1771. It runs: - 'No. 180. From 'the Chief, &c.;, Council at Masulipatam, dated the 21st instant, 'advising of the death of Appa Row and that the half of the 'Zamindari that was under him devolves to his brother, Narayana 'Row, as he died without issue, but that they have given orders 'that no part of the revenue of the late Appa Row's Districts be 'collected by Narayana Row until he shall have entered into pro-'per engagements for the payment of that part of the Zammabundy which was to have been paid by Appa Row.
22. It will be observed that the elder brother is expressly described as 'joint Zemindar of Nuzvid with Narayana Row' and half the Zamindari is said to devolve on Narayya as Venkatadri had no issue. It seems clear from this that the chief local Revenue authorities (the Chief in Council at Masulipatam) considered that if Venkatadri had had issue his half share would have devolved on them instead of going to Narayya; in other words, that the Zamindari was not impartible and descendible to a single heir, but was heritable in the shares in which it was then held by the two brothers. It is also clear that each brother was in enjoyment of separate districts in the Zemindari. Narayya was not allowed to take possession of the half share he inherited from his brother until he gave security for the revenue. Had he newly succeeded to the whole estate, security would have been required for the whole revenue, and not merely for one half.
23. As against the concurrent weight of these documents there is nothing to indicate that Venkatadri was at any time sole Zemindar except a statement in the petition of Narayya (Exhibit 22) to the Circuit Committee in 1786, that Venkatadri. succeeded to the Zemindari on the death of Jagannadha, and that on the death of Venkatadri he himself became Zemindar. These statements are made in a part of the petition dealing with the dispute with the Condana people regarding the Char Mahal, and may be explained by these villages appertaining to Venkatadri's share. In any case, the effect of the statements is neutralized by another statement in the same petition in which Narayya says, 'Since these thirty years I have managed the business of my Zemindari, twenty of which I have behaved well towards the Company' and so on. As this was written in 1786, thirty years just takes us back to 1756, and the statement agrees with the other evidence that he succeeded to the Zemindari in that year with his brother Venkatadri. The present 1st defendant Rangayya (11) summed up the whole position accurately enough in his petition (Exhibit 98) in 1887, when the said 'Venkatadri and Narayya divided and ruled the estate equally; but Venkatadri in course of time died childless, and his mistress made satti : and Narayya became sole ruler of the Zemindari.'
24. That the view we have adopted was the view of the local authorities soon after the date of the events appears from the letter (Exhibit 224) of the Collector Mr. Branfell, to the Board of. Revenue written in February 1801, in which when dealing with a dispute' between the sons of Narayya as to the right to succeed to the estate, he says, 'I understand Ramachandra Row conceives 'himself entitled to share the Nuzvid Zamindari with his brother 'Appa Row, in consequence of their father, Narasimha Appa Row, 'late Zamindar of that country, having shared it with his elder 'brother, Venkatadri Appa Row. At first he was allowed as his ' portion the six parganahs in the Condapalh Circar, which are 'computed at one-third of the value of the Zamindari, but subsequently by tampering with Hussein Ali Khan, the Amildar at 'that period, he prevailed upon him to order an equal division of 'the country, which accordingly took place. Upon the death of 'Venkatadri Appa Row, who died without issue, the management 'of that Zemindari devolved upon Narasimha Appa Row.'
25. It may be observed that the following documents referred to by us in regard to this part of the case were not before this Court when the judgments in the two Nuzvid suits were written, viz., FFF, GGG, KKK, LLL, MMM, NNN, MMMMMMMM (2) and also a number of documents showing grants of Inams by Narayya.
26. After Venkatadri's death in 1771 there was no claimant to his share of the estate except Narayya. He therefore succeeded to it in addition to his own share, and thus became possessed of the whole estate, which he enjoyed until December 1783, when Government declared that he had 'forfeited his Zemindari for rebellion and would never be restored' (Exhibit. 214). His fort was shortly afterwards destroyed by Captain Lysaught. In January 1784 Government favourably entertained the proposal of the Chief-in-Council at Masulipritam to appoint the son of the rebel as his successor in the Zamindari Exhibit 20), and in September of the same year a 'Sanad or commission of Rajahship' (Exhibit 21) was issued to Venkatanarasimha, his son. This Sanad after reciting the dispossession of Narayya, states that the Governor in Council 'reposing special trust and confidence in the integrity and good management of his son, Raja Venkatanarasimha Appa Row Bahadur, do hereby constitute him to the said Zamindari of Nuzvid * * and confirm him in all the rights and privileges thereunto belonging'. It has been argued that there was no forfeiture in. this case, but only the removal of one member of the family for misconduct, and the substitution of another; and in support of this view reliance is placed upon the Ramnad case. I.L.R. (1893) 24 M. 629. It is clear, however, from Exhibits 214 and 20 that it was a complete forfeiture, and that Government considered itself free to convert the estate into Havelly, that is, ordinary Government lands, and that it was re-granted to the son purely as an act of grace. In the previous litigation the Courts (including the Privy Council) have always referred to this transaction as a forfeiture for rebellion, and we see no reason to take any other view of its character. In making the re-grant, however, to his son the Government did not express any intention to interfere with the quality of the estate in regard to its descendibility to heirs. We take it that in accordance with the principle laid down in the Hansapur case Baboo Beer Partab Sahee v. Maharaja Rejender Partab Sahee (1867) 12 M.I.A. 33, and affirmed in the Sivagunga case Muttu Vadvganadha Tevar v. Dora Singha Tevar I.L.R. (1881) 3 M. 290, the re-grant would not operate to render it partible if it was previously impartible and descendible to a single heir. It, no doubt, rendered the estate the self-acquisition of the new grantee, but that would not destroy its character of impartiality if it possessed that character before the forfeiture. (Sivaganga case p. 308). On the other hand if the estate was partible, as we find it was in the present case, there is nothing in the forfeiture and re-grant to affect that quality of the estate. The only effect would be that it would devolve as self-acquired, not as ancestral, property. There is nothing in the Sanad or in the correspondence at the time to suggest that Government recognized the estate as an impartible one, or gave it to the grantee with special advertence to the fact that he was the eldest son of his father. He was a child of 8 years of. age, and his brother, Ramachandra Row, was then a baby of three years. The rebel Narayya continued to give trouble for some time after his deposition, and after his death his second wife claimed a share of the Zamindari for her son, Ramachandra Row (Exhibits 26 and 27), and fomented disturbances of a serious character, so much so that at one time his claims were said to be supported by a force of 20,000 men. During this period and until 1793 the Estate was managed by a Dewan on behalf of the minor, Venkatanarasimha Row, but in that year it was taken under the direct management of the Company and so remained until the permanent settlement of 1802. It was however, expressly stated that the Government did 'not mean in any respect to affect the rights of the Zamindar, but merely to interpose as authorized by his Kabooliat, until such time as we shall be satisfied of his competency to undertake the management' of the Zammdan (Exhibits 29, QQQ). His conduct was very unsatisfactory, and in 1793 he was removed from all interference in the management of the Estate (Exhibit VVV), while in the following year he was placed under personal restraint (Exhibit AAAA.) Exhibit EEEEEEEE shows that allowances were made to him and other members of the family while the estate was 'under sequestration.'
27. Meantime the question of the permanent settlement came prominently to the front and in February 1801, the Collector Mr. Branfell, wrote (Exhibit 224) to the Board of Revenue, 'I 'have to acknowledge the receipt of your letter of the 18th 'ultimo, and beg you will be pleased to inform the Board that 'I understand Ramachandra Row conceives himself entitled to 'share the Nuzvid Zamindari with his brother, Appa Row, in 'consequence of their father, Narasimha Appa Row, late 'Zamindar of that country, having shared it with his elder 'brother, Venkatadri Appa Row. At first he was allowed as his 'portion the six parganas in the Condapalli Circar which are 'computed at one-third of the value of the Zamindari, but 'subsequently by tampering with Hussein Alli Khan, the 'Amildar at that period', he prevailed upon him to order an equal 'division of the country, which; accordingly took place. Upon 'the death of Venkatadri Appa Row, who died without issue, 'the management of that Zamindari devolved upon Narasimha 'Appa Row.
28. 'It appears to be the opinion of the most intelligent natives 'that it should be divided between Appa Row and Ramachandra 'Row, in the same manner as was done between their father and 'uncle when the country by the demise of a relation fell to their 'lot, that is, the five parganas in the Ellore Circar should be 'given to the former, and the six parganas in the Condapalli 'Circar to the latter.
29. 'Viewing it in a political light I am clearly of opinion that 'the tranquility of the country is more likely to be preserved by 'adopting the above arrangement than any other which could 'be proposed. Appa Row may possibly conceive himself injured 'by the measure, but I confess I do not.'
30. In July of the following year 1802, Mr. Read, the Collector, considered the claims of the two brothers to the Zamindari and offered a plan for its division. In paragraph 15 he writes A perusal of the late Collector's correspondence will show that Ramachandra Row's claim to participate in the Zamindari has been long and steadily maintained; so late, indeed, as the 17th July 1795, the views of Venkatanarasimha Appa Row and Ramachandra Row underwent the discussion of their relatives and adherents. In consequence an agreement was exchanged providing ' for the division of estate, effects and Zamindari of their deceased father conformable to the usage in such cases.
16. No doubt remains of the execution of this agreement although I cannot find it received the sanction of the Collector. The elder Appa Row pretends to state that the document was forcibly taken, and has presented what he terms a corrected plan for the division of the Zemindari. The charge of forcible exchange I believe to be incorrect, and the agreement to which Venkatanarasimha Appa Row appeals, is no more than a loose memorandum in the handwriting of the Rajahmundry Peshcar.
17. Founding a claim on this division of the country, Ramachandra Row appears unwilling to receive charge of the six parganas attached to the Condapally Circar. But the appearance of discontent conveys no solid objection to Ramachandra Row's acceptance of such a portion of the Zemindari as you may think proper to delegate to his charge.
18. The early misconduct of Venkatanarasimha Appa Row, his inexperience of business and present want of respectable managers, are causes which to me weaken his claim as the direct hail to the exclusive management of the country. On a subject however, of so delicate a nature and of such importance to the interests of the claimants, a dispassionate judgment should be formed, and viewing the system of policy as the least dangerous, I incline to my former recommendation of the division of the 'Zemindari.' (Exhibit FFFF).
31. In the judgment of the Privy Council in the first Nuzvid suit a reference is made to the above agreement of 1795 between the two brothers, but the Privy Council rejected it then as not legally proved. It has now been proved [Exhibit NNNNNNNNN] in the same terms as Exhibit FFFF (1) as enclosure No. 8 to the Collector's letter, Exhibit 85. It runs as follows : - Having agreed to divide between us who are born of different mothers, all effects, debts and estate of every description left by our late father together with the Zemindari if hereafter obtained, according to the Code of Hindu Law. We are quietly to receive our allowances in the same proportion as hitherto paid by Government, as also all advantages derivable from the Kamatams or otherwise. from the Zemindari until it shall be entrusted to us, and when put in charge of the same we are jointly to manage it by our servants till the expiration of the first Kabooliat, Venkatanarasimha Appa Row, the eldest brother, taking such a share as Cotagherry Coniah, Chintapalla Subbiah, Bommanuty Appanah 'Nandoory Latchiminarasoo, Danabanze Venkatramdoo, Basuvarazu Veeranah, Basavarzu Shoyenah and Doogiraula Ninganah may fix, and when the period of the first Kabooliat shall have elapsed, we are to divide the country according to the Gentoo law, and transact the affairs thereof separately. These conditions are to be religiously performed by both parties, but if we prove so unfortunate as not to be restored to the Zamindari, then the present allowance being inadequate for our expenses, we are to make a joint public representation on the subject and to receive the amount which may be granted in equal proportions, enjoying at the same time the present allowance in the like manner as we have hitherto been paid and without any debate there upon.
32. We are to act constantly. Friendly terms in every respect. 'This agreement is tendered by our mutual consent.
33. It will be observed that this agreement was entered into by the elder brother when ninteen years of age, and by the younger when fourteen, and it was made under the advice of relatives and adherents. It provides for a complete and equal division of all their property and liabilities, and also for an equal division of the Zamindari if hereafter obtained, 'according to the Code of Hindu Law.' It is difficult to reconcile this with any consciousness on the part of the family or their relatives and adherents that the estate was impartible and descendible to a single heir. The Collector had no doubt of the execution of the agreement, and he also found that it was voluntarily entered into, and this is confirmed by the statement in the Report of the Special Commission Which was appointed to investigate the claims of the two brothers in September 1802 (Exhibit GGGG), that the elder brother had intimated his wish to divide as long ago as when the Nuzvid commission was instituted, that is in 1793.
34. The letters (Exhibits 32 and OOOO) written by the two brothers to the Collector in 1804, show that the agreement to divide was acted on in regard to all the property except the Zamindari, which, of course, they were unable to divide while it was under sequestration and in the possession of the Government officers. In dealing with the reports of Mr. Branfell and Mr. Read, the Special Commission already referred to, observe that 'the 'claim setup by Ramachandra Row to share the Zemindari with his brother is founded, Mr. Branfell observes on the circumstances of their father Narasimha Appa Row having shared it with his brother Venkatadri Appa Row, but it appears by Mr. Read's report that it is also maintained on the ground of an agreement entered into between the brothers in 1795 for the purpose of dividing the Zemindari, in the event of its being restored to the family. The intention of dividing the Zemindari having long been in the contemplation of the persons concerned is further established by an intimation conveyed from the elder brother, Narasimha Appa Row, about the time when the Nuzvid committee was instituted purporting that he wished to divide 'the Zemindari with his brother' and added 'judging under these circumstances, and considering the division a measure of prudence, we recommend to your Lordship the restoration of the parganahs in the Ellore Circar lately under the management of Mr. Branfell to Narasimha Appa Row and of the six parganahs in the Condapilly Circar to Ramachandra Row, being the natural division of the country and best calculated to prevent disputes which might arise from a less defined boundary.
35. The final order of Government in the matter was passed in December 1802 (Exhibit HHHH) and is in these words:
The Board having considered with attention the recommendation of the Special Commission for dividing the Zemindari of Nuzvid and for placing the Ellore division under the management of Narasimha Row, and the six parganas in the Condapilly Circar under the management of Ramachandra Row, and learning that it is the wish of both parties that the proposed division should take place, direct accordingly that the arrangement of 'the special commission be carried into excution.
36. Sanads (Exhibit JJJJ and 252) in the same terms were issued to the two brothers in accordance with the decision in 1802, but the Colair villages which formed part of the old estate were never restored (Exhibit 34). In forwarding these sanads to the Collector for delivery to the Zemindars (Exhibits 240) in March 1803, the Special Commission writes 'The Governor in Council has been 'pleased to restore Zemindari of Nuzvid to the family of the 'Appa Rows and at the recommendation of the Special Commission to restore the Ellore division to the eldest brother of the family, Venkatanarasimha Appa Row, and to authorize the six parganahs of Nuzvid in the Condapilly Circar to be conferred on Ramachandra Row, on the terms described in the accompanying extract of the Proceedings of the Commission.
4. The Commission do not consider it to be necessary to go into an explanation of the motives of forbearance and of lenity which has induced them to recommend the restoration of the Zamindari of Nuzvid to the hereditary family, but should the Appa Rows be slow to comprehend the nature of the intentions of the Governor in Council in re-establishing them in their Zemindari, and the principles of the new system, the Commission rely on your explaining to them the benefits of that system and removing every doubt they may have of stability.
5. The Governor in Council having permitted the balances standing against the Nuzvid Zamindari to be written off, the Special Commission authorize you on making over the Zamindari of Nuzvid to the two brothers to grant each a formal relinquishment of all demands prior to Fasli 1212.
37. Reading these papers as a whole it is clear that Ramachandra Row and his relatives and adherents always maintained his right to a half share in the Zemindari at first on the ground that it was enjoyed in equal shares by his father and uncle, and afterwards on the strength of the agreement of 1795 which he and his brother had entered into to divide all their property, including the Zamindari, equally between them. It is also clear that the elder brother did not claim the whole estate as impartible and descendible to a single heir, but voluntarily admitted his brother's claim to an equal share. The Government too, though they at first ignored 'the claims of Ramachandra Row and granted the whole estate in 1784 to his brother, yet subsequently, after the estate had been taken under management for arrears, they appear not to have felt any necessity to deal with it as an impartible estate. The Government eventually accepted the wish of the brothers to divide the estate, a proposal which also commended itself on grounds of policy.
38. The division of the estate was due mainly to the wish of the parties, under the advice of their relatives and friends, but the exact proportion in which Government directed the division to be made was due to political considerations with a view to preventing the disputes that might have arisen from a less clearly defined boundary, and was accepted by the two brothers. As pointed out by the Privy Council in the Devarakota Case Mallikarjuna v. Durga I.L.R. (1890) 13 M. 420, it must be remembered that at that time there were no Civil Courts competent to decide a disputed claim to a share in the Zamindari, and the Government was the only authority which could do so. The decision must, therefore, be regarded as of a quasi judicial character.
39. We think that the history of the transactions affords strong ground for concluding that neither the family nor the Government regarded the estate as impartible and as descendible to a single heir only. As to the effect of the grant of the sanad in 1802 in regard to the descendibility of the estate, it is only necessary to say that the Privy Council in their judgment in the Udayarpaliem case, delivered on the 31st July last, laid it down as now settled law that the acceptance of a sanad in common form under Regulation XXV of 1802 does not of itself and apart from other circumstances, avail to alter the succession to an hereditary 'estate.' There is nothing in the present case to indicate that Government in granting the sanad intended to alter the quality of the estate as regards descendibility. This remained after the grant of the sanad just what it was before the grant. Our conclusion is that it was not impartible before, and that it so remained after the grant of the sanad.
40. At the time when the division of the estate was made between Venkatanarasimha (2) and Ramachandra (3), they had a younger brother, Narasimha (4), who received no separate share. There was a great deal of controversy in subsequent years as to the reason for this ignoring of his existence or at last of his rights. Various officers held various views at different times. In 1802 he was a boy of 14 years of age, and it is not easy to suppose that his existence was unknown. Venkatanarasimha (2) was the son of the elder wife of Narayya. The rebel Ramachandra (3) and Narasimha (4) were both the sons of the younger wife, and it seems probable that in accordance with a view of the law that prevailed at one time Temmakal v. Subbammal (1864) 2 M.H. C.R. 47, the two uterine brothers were regarded as going together and entitled jointly to one share, the brother by the other wife being entitled to the other shave. This, at least, would seem to have been the idea of Narasimha himself and of his advisers, for in 1805 he sued Ramachandra for a half share in the Nuzvid Zamindari comprised in the sanad of 1802. This suit was dismissed on the ground that he ought to have sued both Ramachandra and his half brother, Venkatanarasimha, for a half share in both the Zamipdaris, i.e., Nuzvid and Nidadavole. In 1816 Narasimha, acting on this decision, did so sue, but that suit was dismissed on the ground that the sanads of 1802 were the root of the grantees' title under Regulation XXV of 1802 and that Narasimha, not having any right under the sanads, could not go behind them and claim an independent title. The misconceptions created by Regulation XXV of 1802 were at length corrected by the passing of Regulation IV ofl822, and the Government of Madras passed a special Regulation cancelling the sanad granted to Venkata Narasimha and Ramachandra in 1802, in order to give their younger brother a portion of the property, but this legislation was over-ruled by the Government of India and by the Court of Directors. Eventually, through the influence of the Collector, both branches of the family voluntarily made a provision for Narasimha in satisfaction of his claims. It does not seem to be necessary to refer to these transactions, further than to observe that the litigation of 1816 Venkata Narasimha, the eldest of the three brothers, though he put forward four other defences, Sid not allege the impartible character of the estate as a defence against his younger brother's claim for a partition of it. The Provincial Court actually decreed an equal partition of the estate, yet even in the appeal no plea was raised that the estate was impartible by family custom, or by its inherent character, as being of the nature of a Principality or Raj or military fief; but Venkata Narasimha in a Supplemental defence did rely on Mr. Branfell's suggestion that the property should be equally divided and one s half be given to him as the son of one wife and the other half given to the two sons of the other wife.
41. Venkata Narasimha (2) remained in sole possession of the Nidadavole estate until 1827 when he died, and was succeeded by his adopted son, Narayya (5). There being no person who under the ordinary Hindu Law was a coparcener with Narayva (5), no question of partibility or the reverse then arose.
42. It may, however, be remarked in passing that the elder surviving widow of the deceased Zamindar, though she then denied the adoption, and claimed the whole estate for herself, did not base her claim on the ground that by family custom or otherwise, it was impartible and descendible to a single heir, but solely on the ground that according to the then currently accepted view of the, Hindu Law relating to succession by widows to the property of husbands, she, as the elder widow was alone entitled to succeed to all her husband's property, other widows being entitled to succeed in turn on her death. (Exhibits 50 and 51, Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 M.H.C.R. 447.
43. In 1843 the estate was sold for arrears of revenue and was bought in by Government which granted a portion of it to Nuzvid in satisfaction of a large debt due by Narayya to the owner of that estate. The rest of the Nidadavole estate the Government restored to Narayya under a fresh grant. That the effect of this sale was to cancel Narayya's title to the estate was decided by the Privy Council in the Tangellamudi case Rajaji Bahadur Garu v. Parthasaradhi Appa Rau I.L.R. (1902) 26 M. 202, and that decision is binding on the present parties, who were all parties to that suit also. The counsel for Parthasarathi contends that the sale broke up the estate of Nidadavole, and that even if the estate up to that time was impartible, it must henceforth be regarded as the self-acquisition of Narayya under the new grant, and would follow the ordinary Hindu Law and be partible property after his death. He relies on the decision of the Privy Council, in the Merangi case Sri Raja Satrucherla Jagannadha Razu v. Sri Raja Satrucharla Ramachandra Razu I.L.R. (1891) 14 M. 237, but we are unable to accept this contention. In the Merangi case Government had no intention of restoring the estate to the former owner when they purchased it, and the retained possession themselves for sometime after their purchase. Their subsequent grant of it to a son of the former holder was made not on account of any claim which they recognised in the son, but in order to gratify a third person who had deserved well of the Government. In the present case Government brought about the sale as the only safe and legal method of effecting the relief of the family' (Exhibit 232) and protecting the estate against its creditors. Government all along intended to restore the balance of the estate (after satisfying creditors) to Narayya, and there is no indication that they had any intention of interfering with its quality in regard to descendibility. In accordance with the principle laid down in the Hansapur case (1867) 12 M.I.A. 33 the inference is that its quality was unaffected by the sale and re-grant under these special circumstances. We have, however, seen that it was not an impartible estate prior to the re-grant of 1843, and it, therefore, was not impartible after that event. Narayya (5) remained in enjoyment until 1864 when he died without issue. He left two widows. Papamma Row and Chinnamma Row, as his heirs. He also left a will. This will was found by the District Judge not to be genuine; but for the reasons stated later on, we find that the will is certainly genuine. In it Narayya authorized the widows to adopt a son for him, and directed them to divide his Zemindari and all his other property equally between them. Government objected to the division of the Zamindari; but agreed to let the widow enjoy the Zamindari jointly, and this they did for nearly twenty years until the death of the younger. If the Zamindari was impartible, Papamma Row, the senior widow would have been entitled to enjoy the whole Zamindari. She was a woman of great capacity and determination. The fact that Narayya directed the Zamindari to be equally divided, and that a woman of Papamma Row's character consented to allow the junior widow to enjoy the estate equally with her for so many years, is, we think, eloquent testimony to consciousness of the family that the estate was partible according to the ordinary Hindu Law.
44. With regard to the second or Nuzvid branch of the family, which enjoyed the Nuzvid estate separately under the sanad of 1802, we may observe that there were only two successions, viz., in 1814 when Ramachandra (8) died and was succeeded by his only son, Sobhanadri (6), and again on the death of the latter in 1868. There was no co-parcener in existence when Sobhanadri succeeded, so no question of partibility could arise. But Sobhanadri left six sons, and, as we have seen, the five younger sons claimed shares in the Nuzvid estate, and brought the two Nuzvid suits already mentioned in order to establish their claims.
45. Recapitulating the successions from 1756 we find that two brothers, Venkatadri and Narayya, were joint Zamindars, with exactly e'qual shares, from that year until 1771 when Venkatadri died, and Narayya then became sole Zamindar until 1784 when he was deposed for rebellion. The estate was soon afterwards re-granted to his son, Venkata Narasimha, who was in fact, the eldest son, though no stress is laid on that fact in any of the papers connected with the grant to him. His younger brother, Ramachandra, however, and his adherents, at once disputed his claim to the whole estate, basing Ramachandra's claim to a half share on the fact that his father and uncle had enjoyed the estate in moieties. Venkatanarasimha admitted his brother's claim as early as 1793, and in 1795 made a formal agreement to divide the Zemindary with him if they should ever recover it from Government which had sequestered it for arrears and owing to its mismanagement. A Special Commission was appointed to investigate the claim of Ramachandra, and after an enquiry they recommended the division of the estate between them, and sanads in exactly the same form were issued to each. In the litigation of 111816 when a younger brother sued for a share of the estate, Venkatanarasimha did not plead (as he might have done if the fact were so) that the estate was by its inherent nature, or by family custom, impartible and descendible to a single heir. On the only other occasion when a question as to the partible character of the estate could have arisen, i.e., in connection with the death of Narayya in 1864, we find that in his will he treated it as partible, and it was enjoyed as such by his, widow for nearly twenty years.
46. In this state of the evidence as to the manner in which the estate was actually enjoyed since 1756, we think that we may follow the example of the Privy Council in the Devarakota case, and hold that it is not necessary to go further back. If it were necessary to do so we. should agree with the District Judge that there is no satisfactory evidence that the Zamindari was held as an impartible estate descendible to a single heir prior to that time. In addition to the considerations urged by the District Judge we should have to point out that the Persian sanad of 1765 [Exhibit 87 (c)] which was relied on by this Court in the Nuzvid suit as most important evidence of the military or feudal character of the tenure, is almost certainly not a genuine document. It is a most important document of title but it was never produced in any suit, or before any authority, or referred to in any document prior to, the time of the Nuzvid suits a few years ago. It purports to be a grant of the Zamindari by the Nizam Ali Khan to Venkatadri on the 23th December 1765, and it purports also to grant him the title of Mansabdar and Commander of 3,000 men. Grant in his Political Survey already referred to makes no reference to this sanad, and it is difficult to suppose that he would not have known of it if it really had been granted. He speaks of Venkatadri holding under Amildari sanads, but this sanad was not granted either by, or to, an Amildar, but was granted by the Nizam himself to the Zamindar. Again, if it were genuine, it ought most certainly to have been produced before the Circuit Committee in 1786, or at least referred to in Exhibit 22, the petition which the rebel, Narayya, presented to the Committee in that year, and in which he set out the history of the Zamindari in great detail. The Condana people [Exhibit MMMMMMMM (1)] were at that time claiming to have an independent title to the four Parganas known as the Char Mahal, and Narayya was concerned to refuse their claim and show that they held under a grant from his own family. It is argued that there was no occasion for Narayya to refer to the sanad of 1765 inasmuch as the Condana people admitted the superior title of Narayya's family ; but this is not so. The Condana people, no doubt, admitted an original grant from that family, subsequently confirmed by the French in February 1759, but they alleged that in May of the same year they had obtained a grant direct from the Nizam in which the grant from this Narayya's family is entirely ignored, and they claimed an independent title, which, we may remark in passing, they eventually established to the satisfaction of the British authorities (Exhibit 219). If Narayya could have referred to a still later grant, such as that of 1765, also direct from the Nizam, and with the Char Mahal specially mentioned, it would have been a complete answer to the Condana claim Even if Narayya's sanads had been lost when his Fort was destroyed in 1784, he could still have referred to the sanad which was of recent origin and was granted to his brother who was joint Zamindar with him so that he could hardly have failed to know of its existence and importance. The Judge has also found that Narasimha, the Zamindar in 1798, ought to have produced it with his petition Exhibit 222, dated the 11th November 1798, which was written in answer to an invitation from the Government to him and all other Zamindars to state their titles with a view to the permanent settlement then in contemplation. If the document were genuine he certainly ought to have referred to this important title-deed, but though the District Judge admitted Exhibit 222, we are of opinion that it is not admissible since it appears to be a copy only, of the petition, and there is nothing to show who made it, or that it is a true copy, or that it was made more than 30 years ago, or that the original was ever sent to the Collector.
47. Being inadmissible, the argument against the genuineness of the Persian sanad founded on it fails. But we do not agree with the District Judge that this sanad has been produced from proper custody. It was first produced in the Nuzvid suit by one, Narayya, who was a member of the Nuzvid or younger branch, and there is no evidence as to how that branch became possessed of it. It ought to have been in the possession of the elder branch. Even if it had been carried away in 1784, by the mother of Ramachandra Row, it ought to have been restored by her when she gave up to Mr. Malcolm in 1791 the 'bonds and other valuable documents' which she had carried off and which Mr. Malcolm restored to the elder branch (Exhibit 85.) A list of those papers is found in Exhibit MMMMMMMMM, but this sanad does not appear among them. It is, however, suggested that she wrongfully kept back this paper and did not give it up to Mr. Malcolm. This is a mere surmise, unsupported by any evidence. The grant, being to one only of the then joint zemindars, was adverse to the claim she svas asserting for her son to half the Zemindari, and if she had kept back the document, 'it is reasonable to suppose that she would have destroyed it. We do not think that it can be said that this document has been produced from proper custody. Its age, therefore, raises no presumption that it is genuine.' Another suspicious circumstance connected with this document is that the original is not now forthcoming, and no explanation of the fact is given. This important document of title which was kept so carefully for more than a century, (though never produced or referred to, in any of the many transactions of which we have evidence), was at length produced in the Nuzvid suit, and after it was accepted there as genuine, it has now been allowed to disappear and no one can say how or why, and we have nothing to examine save a copy of it. This method of dealing with documents, the genuineness of which may be disputed, is now so well recognized in the Indian Courts that it necessarily adds to the suspicion otherwise attaching to the document. For the reasons we have stated we conclude that this Persian sanad is not genuine.
48. In the view that we have taken that the evidence clearly shows that the estate has not been of an impartible character and descendible to a single heir since 1756, we do not consider it necessary to go further back and discuss whether the estate was prior to that time, held on a military or feudal tenure or partook of the nature of a Principality or Raj. We may, however, state briefly that we concur in the conclusion of the District Judge that there is no reason whatever for thinking that the estate ever partook of the nature of a Principality or Raj. There is more show of reason in support of the idea that it was held on a sort of military tenure or rather that it was a Deshmukhi or renter's estate burdened with a liability to furnish a certain number of armed men to the ruling power when so required. No doubt in the first years of their rule the English authorities regarded the Zemindaris as military or feudal estates (Exhibits 201 and 204) but the incorrectness of that view was explained in the letter of the Board of Revenue to Government dated the 30th September 1786 (Exhibit JJJ) and the same view as to the true character of these Zamindaris was maintained in the Fifth Report, pp. 6, 7 and 8. Whatever military assistance was required of the Zamindars it was quite a minor part of their duty, and it was in the case of this particular Zamindari expressly declared (Exhibit 20) to have ceased altogether after the rebel Narayya was deposed in 1784. If it existed up to that time it is quite clear that it was not of such a character as to imply that the estate must be held by a single person only for we find that the Zamindari was, in fact, held by brothers Venkatadri and Narayya, in equal shares from 1756 to 1771, a period which embraced several years under both Mahomedan and British rule. No presumption in favour of impartibility, therefore, arises from the tenure on which the estate was held, and there is nothing to negative the positive evidence which we have as to the actual facts of enjoyment since 1756 and the inferences to be drawn from them.
49. We find that the estate is not impartible and descendible to a single heir, but is partible according to the ordinary Hindu Law applicable to co-parcenary property.
50. The next question that arises for decision is whether the Will of Narayya (5) is genuine or not?
51. The Subordinate Judge found that it was undoubtedly genuine, while the District Judge with somewhat fuller evidence before him found with equal confidence that it was a forgery. The question has been most fully argued before us, and the conclusion at which we arrive is that the will is genuine. It is in the following terms:
Will executed on Thursday the 8th Margasira Suddha of the year Rakthakshi, (6th December 1864) by Rajah Narayya Appa Row Bahadur Garu in favour of my two wives, Papayya and Chinnayya.
As my illness increased, and as I think I would not survive, you both should divide in equal shares my Zamindari Nidadavole and Baharjali Parganas and Amberpet Pargana, the cash in the upstair building and all other moveable and immoveabte property. It has been arranged that my nephew (sister's son) Chiranjivi Vellanki Venkata Krishna Row should enjoy hereditarily from son to grandson the profits of the village of Mandur attached to Ambarpet Muttah and also of Nagulapalli and Rajupattepalli villages attached to the Taluqdari, and that my brothers-in-law Vellanki Jagannadha Row Garu and Vellanki Sura Row Garu should enjoy hereditarily the profits of the village of Undrajavaram attached to Nidadavol Pargana paying every year the peshcush fixed therefore at the Sub-division according to the kistbund (instalments). You both should maintain our Samstanam servants - clerks, dasis and other servants. You should for the most part live in harmony with my younger brother Chiranjivi Venkatadri Appa Row. You should adopt a boy who is our sannihita (one closely related) whenever it strikes you that our Samstanam should continue. In all matters you both should act without quarrelling. I have this day alone caused a petition to be written and sent to the Collector of Godavary in regard to this matter. You both should without fail act according to the aforesaid paddhatis (terms).
(Signed) Appa Row.
6th December 1864.
(Signed) Vadlapatla Kondappa, Village Munsif.
(,,) Duggirala Rama Das.
(,,) Duggirala Subbanna, Kulkurnam, Sanivarpet.
(,,) Chellikani Chinna Rayunim Garu.
Written by pangali Lakshiminarasayya, Sheristadar.
We both have agreed to act according to the aforesaid terms.
(Signed) Rajah Papamrna Row.
(') Rajah Chinnamma Row.
This Will was written in my presence on the said date.
(Signed) Vadlapatta Kandappa,
52. This will was produced from proper custody, viz., that of Papamma Row and it is more than 30 years old. It is therefore open to the Court under Section 90 of the Indian Evidence Act to presume that it is genuine. There is however ample evidence on which to determine the genuineness of the will so that it is not necessary to rely on any presumption in regard to it.
53. It will be observed that the will purports to be signed by the testator and to be written by the Sheristadar of the Estate and attested by four other persons. There is also an endorsement on it by both the widows that they agreed to act according to its terms. The genuineness of the signatures of all these seven persons has been proved and in fact is not denied by any of the parties. Nor is it denied that the will is in the handwriting of the Sheristadar. What is denied is that the testator Narayya, (or as he calls himself in the will, Appa Row) signed it. Those who impugn the will suggest that it was connected by Venkatadri (9), who was the natural brother of the testator and who was helping him in the management of the property at the time of his death. They suggest that it was owing to his influence that the attestors attested it and that the widows endorsed on it their consent to act according to its terms. There is really no evidence worth the name to support the suggestion. On the contrary there is ample evidence that the will is genuine. It is true that all the testators and both the widows were dead before the trial of O.S. No. 44, but Rangayya, the Head Accountant of Papamma Row, and the present Karnam of Sanivarpet, where the testator lived, is the son of Subbanna, the former Kurnam who attested the will. This Rangayya was examined in that suit and fully proved the signatures of his father and of all the other attesting witnesses. He also gave in as his opinion that the testator's signature to the will, and to the letter which he wrote about it to the Collector on the same day were his genuine signatures. This opinion is relevant and admissible as proof of the signatures under 47 of the Indian Evidence Act since the witness from seeing pattahs and other papers signed by the testator in the ordinary course of his duty as karnam and accountant of Papamma Row for many years, was well acquainted with the testator's signature. We see no reason to disbelieve this witness. In O.S. No. 35 of 1895, Papamma Row was herself examined as a witness and distinctly proved the execution of the will by her husband, and its attestation by the several attesting witnesses. She also proved the genuineness of the letter sent by the testator to the Collector on the same day reciting its terms. Papamma Row was a very old lady, aged about 70 years, and in feeble health when she gave her evidence, and it is not to be wondered at if her memory was defective in regard to some of the events which had taken place 33 years previously, but there is nothing in her evidence to lead us to discredit her proof of the will. She had also been examined as a witness eight years previously in O.S. No. 14 of 1888 and had then also proved the execution of the will. In that suit also another attestor, Ramadas, was examined and proved the will, as also did Venkatadri (9) who was the father of Parthasarathi (16), and who was the natural brother of the testator and was helping him to manage the estate at the time of his death. In 'that suit the Subordinate Judge held that the will was genuine and the finding was upheld by the High Court on appeal. It seems to us too that the subsequent conduct of all parties, and the probabilities of the case wholly negative the contention that the will is a forgery. Exhibit J (1) is the letter already referred to as sent by the testator to the Collector of the District on the same day (6th December) that the will was executed, in which the testator reported that he feared he was about co die and that he had made a will the terms of which he recites, and which are practically identical with those of the will, Exhibit H. This letter is proved to be in the handwriting of the Sheristadar who was also the. writer of the will, and it purports to be signed by the testator himself. It was proved both in the present suits and in O.S. No. 14 of 1888 to be genuine by the same evidence as was adduced to prove the will. The parties who impugn the will contend that the testator's signature on this letter also is a forgery, and suggest that it also was concocted by Venkatadriin order to give colour to the will, but there is no more evidence to support this plea in the one case than in the other.
54. Exhibit J(2) is a letter written three days later and signed by both the widows and sent to the Collector of the District in which they recite their husband's, illness, and the terms of the will made by him and his letter to the Collector regarding it, and send him a copy of the will and request that he will report the matter to the Board of Revenue. The genuineness of Exhibit J (2) is proved and indeed is not disputed. The facts were duly reported to the Board of Revenue and by them to Government, who, in July 1865, decided that the testator could not have intended the estate to be divided as he had provided for the adoption of a son in order to continue the family, but offered to recognise the widows as joint owners of the estate on condition of their managing it in accordance with the terms of the will. The Collector in his letter J (3) to the widows also recites that he had made enquiries under the Court of Wards Regulation and had reported that they were of suitable age and capacity to personally manage the estate and that he also found that they had appointed their late husband's brother Venkatadri (9), as manager, and that, therefore the Court of Wards had decided that it need not interfere with the estate. He therefore acknowledged them as joint owners and directed them to manage their affairs as directed in the will. This letter was written to the widows on the 4th September 1865, that is some nine months after the death of the testator, and in the interval it is clear that the attention of the revenue authorities was directed to the affairs of the estate and family. It seems most unlikely that if the will was a forgery and was known to be so not only by Venkatadri and the attestators, but also by Rangayya (11) and by his father and brothers (as Rangayya now says it was) from the very time of its forgery, the matter would not have reached the ears of the Revenue authorities. There is, however, not the slightest reason to suppose that they doubted the genuineness of the will or of the letter J (1). The testator had been managing his estate for some 37 years prior to his death and his signature must have been perfectly well known to the. Government authorities and to many persons in the Collector's office, a consideration which renders it unlikely that a forgery would have been attempted, and still more unlikely that, if made, it would have escaped the notice of the Collector and the Government authorities.
55. The District Judge lays strees on the facts that the original of the will was not sent to the Collector, but this appears to be immaterial in view of the fact that a letter signed by the testator himself was sent to the Collector on the very day that the will was executed informing him of its terms, and a copy of the will itself was sent a few days later. The supposed forgers therefore, did not fear to give the authorities immediate and exact information as to the terms of the will, nor were they afraid to submit the signature of the testator to the inspection of the Collector and of those in his office. The widows and those about them appear to have acted precisely as they might be expected to have acted if the will was genuine.
56. A reference to the genealogical tree will show that at the time of the testator's death, Sobhanadri (6) and Venkatadri (9) were the nearest reversioners. Rangayya (11) was then about 24years of age and Venkatanarasimha (12) was a few years younger. The reversioners had a clear interest in opposing a will which not only gave away several villages to legatees, but gave the widows power to adopt and thus cut off the reversioners altogether, yet none of them made the slightest move by word or deed to suggest that the will was not genuine, though it is the case of Rangayya now that he and his brothers and his father Sobhanadri (6) were at the testator's residence and knew of the forgery within a few days of his death. Moreover, the will was acted upon by the family and was treated as genuine in a number of suits to which members of the family were parties. In the Nuzvid suits in 1871 Venkatanarasimha (12) was the plaintiff, and he then filed a copy of the will as an enclosure to another paper. It is said that he made no use of the will and that it was filed, as it were, by accident, as an enclosure to the other paper. The fact, however, remains that he placed this most important document on the record without remark of any kind, though his case now is that he then knew it was a forgery, and the Privy Council, in fact, referred to it as genuine in their Judgment in that case, Raja Venkata Rao v. Court of Wards I.L.R. (1879) 2 M. 128. In the Tanuku suit in 1881, Vellanki Jagannatha Row, one of the legatees under the will, sued to eject certain tenants from one of the villages left to him by the will. The genuineness of the will was proved by Venkatadri and by Ramadas, one of the attestors, and it was acted on by the Court as genuine. In 1885 Paparnma Row acting under the authority given in the will adopted Venkataramayya (15). Neither Rangayya (11), nor Venkatanarasimha nor any other brother made any objection though the effect of the adoption was to cut them off as reversioners.
57. It is argued by those who now impugn the will that no suit for a declaration could have been maintained by the reversioners prior to me passing of the Specific Relief Act in 1877, but this argument is of no weight, because it was not necessary for them to have filed a suit. If they knew that the will was a forgery, they could have petitioned the Collector. That would have been the natural thing to do, and it would have served to cause an enquiry to be made and would have gone far to safeguard their interests as reversioners.
58. The District Judge thinks that Sobhanadri (6) who was the senior reversioner in 1864, was deterred from taking action by his disputes with his sons, but it is difficult to see why such disputes should have done so. At all events on his death in 1868 there was no apparent reason why his sons including Rangayya (11) and Narasimha (12) should not have taken action. In fact the will was treated as genuine by all the members of the family for 24 years, and it was not until 1888 that any question as to its genuineness was raised. Such being the broad outlines of the evidence regarding the will and of the way in which it was treated by all members of the family for many years, we are unable to attach much weight to the various difficulties and suspicions the cumulative effect of which seemed so important to the District Judge.
59. We shall, however, refer briefly to some of them in the order in which they are dealt with by him.
60. The first point that struck the District Judge as suspicious are (1) the fact that the stamp paper on which the will was written was purchased in August 18(54 though the will was not executed until December; (2) the value of the stamp was Rs. 2 though Rs. 1 would have been sufficient; (3) nothing is known as to the man whose name appears as the purchaser of the paper, and (4) the will was not registered.
61. In regard to these objections it seems sufficient to say that under Regulation XVII of 1802 then in force registration was optional and had to be made during the lifetime of the testator. Probably the parties considered that the letters written by the testator and the widows to the Collector were quite as effectual a safeguard as registration, and more in accordance with the dignity and importance of their family. Under the Stamp Law then in force (Act X of 1862) 'a will, testament and the like' was exempt from stamp duty, and it may be that this would cover a testamentary power to adopt. In any case, the parties had no legal advice at the time, but no doubt thought that a stamp paper of some kind would add efficacy to the transaction. It seems hardly reasonable, after the lapse of more than quarter of a century, to expect evidence to be forthcoming in explanation of such matters, and to draw inferences adverse to the will because they are not forthcoming. Had objection been at once taken to the will it may well be that such matters would have admitted of easy and satisfactory explanation.
62. Then the District Judge points out that the testator's letter of the 6th December and the widow's letter of the 9th December to the Collector did not reach him until the 12th and 13th December respectively, and he regards the delay as suspicious. The District Judge is wrong in saying that the Collector was then at Cocanada. There is no evidence on the record to show where he was at the time, and it may well be that he was on tour, in which case the delay of these few days might easily occur considering the great extent of the Godavari District. The fact that the widows did not report the time of the testator's death in their letter of the 9th December, seems to be of no importance when it is noticed that they do not even state the fact of his death, thought they write about him as dead, and send a copy of the will, No doubt the reason was that the matter was so recent and so notorious that it was known to every one. Then the District Judge thinks it is a matter of suspicion that the will is not attested by the testator's relatives, Venkatadri (9) and Venkatakrishna Row who were present, but is attested only by certain estate officials. The attestors include the Village Munsif and the Karnam, and all appear to be persons who might naturally be present 'and be asked to attest. It was, moreover, written by the estate Sheristadar and endorsed by both the wives, and this may well have seemed sufficient proof of its authenticity. Krishna Row was himself a legatee, and legacies were also given to some members of Venkatadri's family. This may well account for their not attesting the will.
63. The District Judge also considers that the terms of the will are suspicious as they favour the relations of the junior widow Chinnamma, and her brother-in-law, Venkatadri (9J, by. giving legacies to Jaganatha and Sura Row, her brothers, and to Krishna How, who was son of Sura Row, and was married to the daughter of Venkatadri (9).
64. The gift of these legacies was, however, natural enough since the elder branch - that of Sobhanadri (6) - was very wealthy and possessed the large Nuzvid and Medur Estates, while Venkatadri's branch was by comparison quite poor. Papamma Row and Sobhanadri (6) and all his family, who were the persons injuriously affected by the legacies, acquiesced in them, and it, therefore seems unreasonable to now see in them an indication that the will was concocted by Venkatadri (9) in order to benefit his family. In another part of his judgment the District Judge relies on the somewhat inconsistent plea that if the will were genuine the testator ought to have left a legacy to Venkatadri, who was his own natural brother. This plea is, however, deprived of all force if it is remembered that the testator had already in 1843 given him the village of Tangellamudi out of Nidadavole, and he had also been given the village of Chevendra by the Nuzvid branch. It is to be observed that the will does not direct that Venkatadri (9) should manage the estate, nor does it nominate his son as the boy to be adopted, as it might be expected to do, if Venkatadri had got it concocted in his own interest. The District Judge, it is observed, is in error in supposing that Venkatadri's son was the only 'boy nearly connected' with the testator at the time. Exhibit JJJJJJJJ shows that in 1864 there was also a grandson of Sobhanadri (6) alive and aged 9 years who was eligible for adoption equally with Venkatadri's son.
65. It may be stated once for all that Papatnma Row was a woman of very strong character and intelligence. At the time of her husband's death she was about 40 yean of age and managed her affaire personally. Sobhanadri (6) was, moreover, married to her sister, so that she could count on his support if necessary. She was, therefore, by no means likely to be cajoled or frightened by Venkatadri into accepting any arrangement injurious to her interests and it is impossible to see what interest she can have had in concocting the will. If the estate of Nidadavole was impartible, she, as the first married of the two widows, would be entitled to the whole of it for her life. If it was partible, she would be entitled to it jointly with Chinnamma and free from the legacies left by the will. She would not have been led to join in concocting the will merely to secure her husband's authority to adopt, for it is manifest that she had no wish to make an early adoption. She, in fact, made none until 1885, that is 21 years after her husband's death. Her determination to herself retain the possession and enjoyment of Nidadavole during her own life is manifest throughout, and an adoption would be pretty sure to put an end to this. Moreover, if at any time she should desire to make an adoption the want of her husband's authority could be cured by the consent of Sapindas. There was, therefore, no need for her to forge a will for this purpose. The simple and natural explanation for Papamma Row's action in regard to the will is that it was the genuine act of her husband, which she loyally desired to give effect to; and this appears also to have been the leading motive for her conduct all through the latter years of her lift; when harassed by litigation and the intrigues of her husband's relatives and their advisers.
66. Another argument against the genuineness of the will which seems to the District Judge to be a very strong one was that the testator might have made the adoption in his own lifetime if he had wished to do so. It is, however, clear from the terms of the will that his wish was to leave the estate and all his property to his widows to be enjoyed by them as long as-they choose to do so and he only contemplated an adoption at a latter date 'whenever it might occur to them that the family should be continued.' In this view the argument seems to us to have no weight. Nor do we attach any weight to the expert evidence adduced on both sides with regard to the testator's signature. It is mutually destructive. We must, however, point out that the District Judge is in error in saying that the loop at the bottom of the letter in all the admitted signatures of the testator proceeds from left to right while in the will it proceeds from right to left. Exhibit 133 (a) is one, among others, in which it proceeds from right to left as in the will. There is also nothing suspicious in the use of the shortened signature 'Appa Row'. This appears to have been his titular designation and he constantly signed documents in this way. Had he not done so, it is not likely that persons so well acquainted with his signature as were the persons who are suggested as the forgers of the will would have written his name in this way, or that if they had, the matter would not have attracted the notice of the Collector and the Government authorities who received Exhibit J (1) in which the testator signs in the same way as in the will.
67. By the parties who deny the genuineness of the will much stress is laid on the contention that the provisions of the will were not given effect to, and it is argued that this was because to do so would have provoked enquiry by the Government authorities into the genuineness of the will, arid this the concoctors of the will were determined to avoid. We think that there is no force in this argument. It is true that the widows did not divide the estate as the will directs, but on the suggestion of the Government, they did what suited them equally well and came to nearly the same thing - they enjoyed it jointly. Then it is said that they did not give effect to the legacies, and that one of the villages, Rajupotepalli, had, in fact, been given to the Jheer of Vanamamalai by the testator in 1847, and that it therefore could not have been given away again in 1804 by a genuine will. The facts appear to be that the Jheer took possession of the village for some years, but as he lives in Tinnevelly, many hundreds of miles away, and as the village is in a jungly and out-of-the-way locality he found a difficulty in collecting the rents, and ceased to do so from 1855 onwards, but from that time the rents appear to have been collected by the estate officials, and the testator paid the Jheer a sum of Rs. 500 a year on account of, or in lieu of, the rents. After his death Papamma Row continued to make the same payments. It, therefore, seems probable that the testator regarded the village as abandoned by the Jheer in consideration of a yearly cash payment in lieu of it, and therefore thought himself free to dispose of it in his will. It is difficult to suppose that Venkatadri and Papamma Row who had both been long conversant with the affairs of the estate, and who were helping in its management, and the Sheristadar of the estate, who wrote the will, were ignorant of the grant of the village to the Jheer, or would have made the blunder of including the village among those given as legacies if the will were concocted by them. It is absurd to suppose, as the District Judge does, that the widows and Venkatadri agreed to try and recover the village by fraudulently attempting to make the Jheer believe that the testator by his will revoked the grant of the village. The grant could not be legally affected by anything in the will. The widows would never have willingly attempted a fraud in regard to a village given by their husband as a religious gift to his guru, and in fact a sum of Rs. 500 a year in lieu of the rents of the village was paid to the Jheer by Papamma Row.
68. It is no doubt true that the village of Undrajavaram left to Jagannatha How and Sura How was not taken possession of by either of them until 1869, but the reason for this is fully explained in the judgment of the Privy Council in the Undrajavaram suit reported in Raja Vellanki Venkata Rama Bau v. Raju Papamma Rau I.L.R. (1898) 21 M. 299. There is nothing in that suit to show that the will was not genuine. On the contrary the parties to that suit treated the will as genuine, and the Privy Council found that it 'was the foundation of the whole transaction,' and that the reason why the legatees did not at once take possession of the village was because Jagannatha How thought 'that he had not been fairly treated by the testator who had made a more liberal provision for the family of his younger brother, and so he refrained from accepting the bequest in his favour in the hope that the Ranees would increase it.' It is, therefore, not correct to say that the will was not acted on and there is no force in the plea that the parties were afraid to act on it lest their doing so should lead to enquiries into its genuineness by the Government authorities.
69. The only other evidence to which the District Judge attaches importance as showing that the will is not genuine are certain supposed admissions to that effect by Papamma Row in confidential letters marked as Exhibit X series that passed between her and her Dewan, Venkateswara Row, between 1892 and 1894. We do not think that those letters, if properly understood, contain any such admissions, but it is necessary to briefly refer to them.
70. As already mentioned Papamma Row adopted Venkataramayya (15) in 1885, and he died in January 1888, leaving an infant son, Narayya (17) as his heir. In the following April Venkatadri (9) launched his suit, O.S. No. 14 of 1888, to set aside the adoption. On the 12th March 1890 the Subordinate Judge directed that though the will of 1864 was genuine, the adoption of Venkataramayya (15) was invalid because the person who gave him in adoption was his step-mother who had no power to do so under Hindu Law. He, however, also decided that Papamma Row was estopped from denying her own act of adoption as against Narayya (17). Against this decree Papamma Row and the Court of Wards, on behalf of the minor, made an appeal to the High Court, and while it was pending Papamma Row, on the 27th December 1890, adopted the minor, Narayya (17), the object being to secure an heir for the estates whatever the result of the appeal might be. If Venkataramayya's adoption were held to be valid, that of Narayya would be void; if it were invalid, then that of Narayya would be effectual.
71. In 1891 while the appeal was pending Venkatadri died and Rangayya (11) was brought on the record as one of Venkatadri's representatives, and his Vakil then supported Venkatadri's plea that the will was not genuine. In the judgment of the High Court, however, which was delivered on the 19th January 1893, the will was found to be genuine. Papamma v. Appa Rau I.L.R. (1893) 16 M. 384 On the death of Venkataramayya (15) in 1888 Rangayya (11) succeeded him as Papamma Row's manager. Venkateswara Row who was then Rangayya's Dewan at once became Dewan of Papamma Row also. Nor was this all, Rangayya's son-in-law, Mulraz also became her private Secretary. Thus she was at this time surrounded by advisers who were under the influence of Rangayya, who, as a reversioner, was interested in showing that the adoption of the minor Narayya (17) was invalid and the best way of doing this was by maintaining the invalidity of the will of 1864, as Venkatadri had done in O.S. No. 14 of 1888.
72. This was the state of things when the letters in Exhibit X series were written. The first was written in November or December 1892, that is, just before the High Court judgment in O.S. No. 14 of 1888 and the other letters after that event and between it and the death of Narayya (17) in 1895. The series is obviously incomplete and one at least is mutilated. As the letters were produced by Mulraz, the son-in-law of Rangayya (11), after Papamma Row's death, there is ground for the contention that only such parts as seemed to support Rangayya's case have been produced. Beading the series as it stands, however, the impression it produces on our minds is that Venkateswara in the interest of his master Rangayya, suggested to Papamma Row all kinds of reasons why the will might be impeached in the hope that in the discussion she might he entrapped into making admissions or giving information which might enable him at a later date to impugn the will, and with a view also to make himself indispensable to her as an adviser, and to increase her desire to keep on good terms with Rangayya lest he should attack Narayya's adoption, and this we find was, in fact, the result of the correspondence. There is not in it any admission, so far as we can see, that the will is forged. No doubt, Venkateswara after giving various reasons in prior letters as to why the will might be attacked as a forgery, boldly states in Exhibit X (c). 'It is known everywhere that the will is a forgery. You may perhaps ask if several forged documents are not being upheld. That is not the case with this will, because there are many written proofs to show that the will is a forgery,' and he then goes on to show that the decisions of the Courts in suits in which it had been held to be genuine would not prevent its being again contested. In reply to this Papamma Row writes 'This will cannot be set aside on the ground of being a forgery because several acts have been done under the will for a long time and why will it hereafter be so easily held to be a forgery?. The number of persons who make wills when in good senses are only a fraction; all the wills are generally written after. I wish to hear reasons to say that this will is such a forgery.' We cannot agree with the District Judge that these words 'can only be read as an admission that the will, was forged to her knowledge.' It seems to us to be a denial of the suggested forgery, coupled with a statement of reasons why the will could never be held to be a forgery. She contrasts this will with concocted wills, and wants him to state why this genuine will should be regarded as a forgery like them. In his reply Exhibit X (e) Venkteswara Row reiterates his reason for thinking that the will could be contested, and in doing so,* goes far beyond the truth as when he tells her that the original of the will had 'not hitherto been filed in any public office. It has remained with you for the last thirty years.' It had certainly been filed in the High Court in the Curator Proceedings in 1888 and in the Subordinate Judge's Court in O.S. No. 14 of 1888, and it is also certain that it was filed in the Tanuku Suit in 1881. He suggests to her that she should win over all the reversioners, and he points out that Rangayya (11) and his brother were beginning to think about their rights in the estate and how they could best further them in the event of her death. In her reply she says. 'All the matters stated therein seem to be true. That is no more than that his arguments seemed to her to be true, and she placed on him the responsibility for defending her cause. It was after this and in consequence of the doubts raised by Venkateswara Row that the opinion of Mr. Spring Branson, the Advocate General, was obtained as to the best way of protecting the adoption against attack. These questions were drawn up Venkateswara Row, Mr. Spring Branson very properly advised against a re-adoption which was only suggested to him, evidently by Venkateswara Row, since it would only serve to throw doubt in the fact and on the validity of the adoption already made. When doubts as to the validity of the adoption were urged on Papamma Row we can see nothing unnatural or suspicious in her taking legal advice in regard to them, and the best way to cure defects if such existed.
73. Exhibit X (g) is a mutilated document. The letter written by Venkateswara to Papamma is torn off and only her reply is left. In it and in Exhibit X (f) she refers to her intention to execute a will ratifying the adoption and her anxiety to get the will signed by the three reversioners in token of their consent. It was about this time and probably in this connection that Rangayya (11) wrote Exhibit QQ to Papamma Row. It is difficult to believe that he would have written such a letter if he really believed the will on which the validity of the adoption depended was a forgery.
It runs as follows:
Sri Sobhanadrisa (family deity invoked).
Pinnigaru (mother's younger sister).
Your son Rmganadham makes his salutations. I hear that others are spreading reports that I will take steps to have the adoption made by you set aside under the idea that I shall be the sole heir to your estate as it is said by some people that your estate is impartible. Learned men say that, according to law, it would so happen if there was no adoption by you. But my opinion is that the adoption you made is in accordance with law and that it is one in respect of which there is no room for any one to do anything; I have furthermore already once expressed my opinion plainly. However, if you still entertain any doubt, I have no objection whatever to execute any document you wane relinquishing my rights in favour of Chiranjivi Babu. I shall execute the document whenever you want. Be pleased to consider.
74. The precaution that Papamma Row thought of taking was a natural one in the circumstances, but it is far from indicating that she admitted the will to be a forgery. On the contrary, if the will was really a forgery and was known by Papamma Row to be so, and if she was discussing it confidentially with her Dewan for some two years and devising means for supporting it, we cannot but think that other suggestions would have been made which would have left no doubt as to the real character of the will. We are unable to find any admission or approach to an admission by Papamma Row that the will was a forgery. Her conduct throughout has been that of a person who believed it to be genuine, and Venkatesvara Row himself in his public dealings with the will always treated it as true. So late as December 1899 (Exhibit VV) we find him asking the Collector to act upon it.
75. Losing to all the evidence in the case and the conduct of the various persons interested we have no hesitation in finding that the will of 1864 is genuine.
76. The authenticity of the will being thus established, it follows that the authority given in it to the widows to adopt is proved. It is then contended on behalf of the defendants that that authority was in itself invalid, because it was a power granted jointly to the two widows, whereas it was decided in the Uthumalai case, reported in Annapurni Nachiar v. Forbes (1899) I.L.R. 23 M. 1 that only one widow can make an adoption and therefore an authority given to two must be illegal.
77. To begin with, there is no such ruling in the case referred to. All that their Lordships have done is to notice with approval a Bengal case where three widows having been authorized to make an adoption it was held that only one could take the given son in adoption so as to constitute herself the mother. But so far from the authority given to more than one widow to adopt being held ipso facto invalid, the adoption that was actually made in that case by one of the three widows under that authority was not disputed which it must have been if the authority to adopt was itself illegal. There is, therefore, no ground for this contention.
78. The next contention is that the authority in this case being to the two widows jointly could not be exercised after the death of one by the surviving widow. There is no warrant for this proposition in the will itself. It is true that no provision is made as to what is to happen if one widow dies, no adoption having been made during her lifetime. But there is no prohibition that one widow alone should not adopt after the death of the other. During the lifetime of both, it might well be urged that both should combine in making the adoption. But that is no ground for holding that, when one had died, the authority given to both widows was exhausted and did not remain with the survivor. The intention of the testator clearly was that the widows should enjoy the estate so long as they liked. He required no immediate adoption, which would have ousted the widows from the enjoyment of the estate. But he leaves it to them to select their own time for making the adoption for the continuation of the line. He was, of course, anxious that, for this purpose, an adoption should ultimately be made. But this very object would have been defeated if, after the death of one widow, the other was not to exercise the power. We should not impose limits and conditions on a power which the giver of the power has not himself imposed either expressly or impliedly. A Hindu can authorize no one but his widow or widows to make an adoption. He cannot nominate any one else. He, in fact, has no choice in the matter. So that the authority given to the widows here could have been given to them in no other capacity than that they were his widows. It was by virtue of their status or position as widows that the authority was conferred, and the giving of the authority to both widows without any restrictions is tantamount to giving authority to each. The case is analogous to that of a power given to a person not in his individual capacity, but as holding a particular office such as that of an executor. And in such a case the law is that the power conferred on two is not extinguished by the death of one. The fact that the widows had a right of survivorship in regard to the property is a further good argument that the survivors also had the right under the husband's authority to appoint an heir to that property. This disposes of the second objection and we hold that Papamma Row had full power to make an adoption after the death of her co-widow, Chinnamma Row.
79. The defendants next seek to set aside the adoption of the Medur minor, not on the ground that all due essentials and formalities were not observed in making it, but on the ground that Papamma Row and the Medur Rani were both coerced into making it, and it was therefore void.
80. To deal with Papamma Row's case first; The evidence is overwhelming that her consent to take the Medur minor in adoption, at the time she did was extorted from her by a threat of criminal prosecution for the forgery of a will executed in her favour by Venkatramayya (15), the natural father of the Medur minor, whom she had at first adopted but whose adoption was after wards set aside by the Courts as invalid. The author of this threat was one Mr. P. Subrahmanya Aiyar, an attorney, now deceased, specially employed by the Court of Wards for taking action against Papamma Row in respect to her possession of the Nidadavole estate.
81. The direct evidence on the point is that of Venkateswara Row, the late Rani's Dewan. He speaks positively to Mr. P. Subrahmania Aiyar's having come to Sanivarapet in the beginning of November and telling him that he had secured ample evidence to prove that the alleged will of the Rani's first adopted son was a forgery, and that he intended to prosecute the Rani and the attestors of the will; that on his informing the Rani of this she was very much afraid, that he secured an interview between Mr. P. Subrahmania Aiyar and the Rani at which he, Mr. P. Subrahmania Aiyar; repeated that he would have to prosecute her for forgery and that, considering the matter, the Rani decided that she had no other alternative in consequence of the fear of a criminal prosecution, than to agree to the adoption of the Medur minor, which was really the errand the attorney was upon.
82. This witness Venkataswara Row is a man on whose sole testimony no reliance whatever can be placed. He has been playing a double game throughout - in favor at one time of the Rani Papamma Row and at another time of Rangayya (11), which his position as the Dewan of both of them gave him the opportunity to do. But his evidence does not stand by itself. It is fully corroborated by the statements of Papamma Row herself made at the time and by all the circumstances of the case.
83. Thus we have Papamma Row stating in her private letters to her friends that it was in consequence of the threat of a criminal prosecution that she agreed to adopt the Medur minor. That agreement was made on the 17th November 1890 (Exhibit P 1.) On the 24th of that month we find her writing to a grand-daughter of her sister. Exhibit No 161 in which she states: - 'Recently the Court of Wards sent a Barrister (Attorney) Subrahmania Aiyar, in connection with the affairs of the Nidadavole estate. He came with the intention of bringing a complaint, on the criminal side and proceeded with it to some extent. They settled a compromise in one way to prevent it. They got an agreement written to the effect that, the boy should be adopted again together with some other matters and took it away. This is the outcome of all that had been done. I was sorry for my having lived long. God's will be done.'
84. Next day she writes the following letter (Exhibit No. 65) to Venkata Narasimha (12) still more explicit on the point. In it she says. 'Latterly my mind has become too much spoiled to write a letter to you. Turmoils of dispute have largely happened. By the grace of Perumal (God) a razi was settled in a manner - what does it matter in what manner it is. They have drawn up a Kararnamah on condition of making an adoption again. The Board appointed the Barrister (Attorney) named Subrahmania Aiyar to present a criminal charge and to conduct certain proceedings against us, and sent him consenting to fees of ten thousand. An arrangement of this (sort) was made, so that such troubles might not happen. The act done having become useless (1) have had to become liable to calamities of this sort.' The fact that these statements were made by the Rani admits of no doubt and there is not the slightest reason to suppose that they were gratuitous false statements. The truth of them is confirmed by Mr. Alexander, the wife of a missionary, who was one of the witnesses to the agreement of the 17th November. This lady says that Papamma Row was vexed at the time and told the Medur Rani that she had been forced to adopt the child. 'She said that she was told that she would be prosecuted if she did not make the adoption. That is, as far as I can remember, she said she would be prosecuted in connection with some will.' Mrs. Alexander's daughter, Mrs. Lovery, was also present, and attested the agreement and though she does not fully support her mother as to what the actual objection taken by the Rani was, she distinctly proves that the Rani did not want to adopt the child. She says 'Papamma Row objected to the adoption. But we persuaded her to consent to it. I do not remember the details of the objection and how they were got over.' But she adds that her mother would not have stated what she had if it was not so. So that here we have clear and direct independent evidence that Papamma Row's agreement to adopt the Medur minor was extorted, from her.
85. Now the indirect or circumstantial evidence is equally conclusive on the point. The proposal that Papamma Row should adopt the Medur minor had been started 18 months previously to November 1890. But the negotiations to that effect fell through on the 15th August 1889, neither the Rani desiring to make the adoption nor Mr. Miller, the Collector, acting on behalf of the Court of Wards (vide Exhibits No. 69 and VVVVVVVV) wishing to insist upon it. This was the condition of things at the beginning of November 1890. Mr. Subrahmania Aiyar comes upon the scene on the 2nd November and, within 5 days of his arrival, he has brought the Rani to terms as appears from the following telegram (Exhibit No. 71 sent by the Collector of Godavari to the Court of Wards) : - 'Subrahmania Aiyar has arranged adoption if left in undisturbed possession during life. I approve details. He asks (torn) immediate sanction (torn) agreement as delay may prove fatal.'
Subrahmania Aiyar says Papamma Row has agreed to adopt Medur minor if she is left in unmolested possession during her lifetime and asks Court's sanction to enter into agreement with her. I approve the terms. If there is any delay, she may change her mind. Wire orders.
86. This telegram of itself shows that the Rani's consent was at the very least a reluctant one : See the words : 'Delay may prove fatal.' 'If there is any delay, she may change her mind.'
87. What could have been the cause of the Rani's sudden but reluctant conversion in 5 days to do what she had refused to do for 28 months previously but some such cause as she alleged at the time.
88. Mr. Harris, who was the local Apothecary at the time the will so unjustly impugned, was executed, has attested the will and also subscribed a certificate as to the soundness of the mind of the testator when making it. He has given evidence proving that Mr. P. Subrahmania Aiyar, on his visit to the place, came to him, hectored him about the will and threatened him that he, among others, would be prosecuted in connection with the will, which is, perhaps, the very strongest circumstance of all the strong circumstances to show that the sole object of Mr. P. Subrahmania Aiyar's visit to Sanivarapet was to frighten the Rani and so gain her consent to make an adoption, which at that time she was unwilling to make.
89. Mr. P. Subrahmania Aiyar, when examined, sheltered himself behind the plea of privilege and would not disclose even why he went to Sanivarapet or what he did there. We know, from a letter of his to the Court of Wards (Exhibit No. 142) that the reason he went there was to inquire about the will. But what he did there we can only gather from the evidence of other witnesses. He does not contradict Mr. Harris's statement. He does not contradict Mr. Venkateswara Row, the Dewan's statement. And in the absence of any denial that these statements are true and any true account from himself of what he did there cannot be the slightest doubt, from the evidence and circumstances set forth, that the Rani Papamma Row, was forced by a threat from him of a criminal prosecution in connection with the will to agree to the adoption of the Medur minor at that time.
90. Her unwillingness to make the second adoption then while the question of the validity of the first adoption was pending in appeal by her to this Court was most natural, for it was not for her to cast any doubt upon the validity of the first adoption for which she was hotly contesting. She alludes in two of her letters in the X series to the decision that followed upon the course she had been forced to take. In Exhibit X (b) she says 'Naidu Garu and others said while that adoption subsisted, how did you do it again. And in Exhibit X (f) she says 'that the two adoptions took place hitherto were done by practising deception on me and that I therein rendered myself a fool, have become public.'
91. If the agreement of the 17th November 1890 had been considered by the attorney Mr. Subrahmania Aiyar acting for the Court of Wards to be a binding agreement as having been made with the free consent of Papamma Row, no reason has been shown why another agreement was made on the following 27th December, an agreement which in its terms is substantially the same as that made on the 17th November. No satisfactory explanation is given of the necessity for this second agreement. It is stated somewhere that the first agreement was on only an eight annas stamp and that was the reason of the second agreement. But that second agreement is also only on an eight annas stamp. It is most probable that the astute attorney got wind of Papamma Row's written objections to the agreement of the 17th November as having been extorted from her and so he contrived, but not without great difficulty as the correspondence shows, to get another agreement subsequent to the date of her protestation against the first agreement.
92. That establishes the case set up that Papamma Row was coerced according to the definition of 'coercion' in the Indian Contract Act, into making the adoption, the 'coercion' here being 'criminal intimidation' as defined in Section 503 of the Indian Penal Code.
93. Now the question arises whether this coercion voids the arrangement or only makes it voidable. No authority is quoted to us showing that under the 'Hindu Law' an adoption made under coercion is ipso facto void, and under the Law of Contracts it is only voidable. Papamma Row lived for many years after this adoption, but so far from ever seeking to set it aside, it is clearly shown, and indeed it is admitted, that she fully agreed to it and ratified it in every way she could and for years her chief anxiety was to maintain and establish it as a valid adoption. As no one's interest was prejudicially affected by this subsequent ratification before it was made, the adoption must be held to stand good.
94. It was urged for Rangayya (11) and Venkata Narasimha (12) that it was the stifling of a criminal prosecution that led to Papamma Row's consent and such a consideration is opposed to public policy and the adoption is hereby rendered void. There is no doubt that if such had been the case the agreement would be void. But we are unable to say that there was any stifling of a public prosecution, in other words, any compounding of a felony, for the simple reason that no felony had been committed and no prosecution had been started on the footing that a felony had been committed. All the ceremonies proper to a valid adoption were admittedly performed, and the conclusion we come to is that though the coercion to which Papamma Row was subjected might have justified her in repudiating the adoption, yet as she did not repudiate it, but always maintained its validity, the coercion does not render it invalid.
95. As to the alleged coercion of the Medur Rani, only a few words need be said. We find that great pressure was brought to bear upon her to give her infant son in adoption. Her sole objection, however, was that the child would be taken away from her. But when it was arranged that she would retain the custody of the child, she appears to have readily consented to give him in adoption, as it was greatly to his material advantage to be so given. So that, as regards her there was nothing to vitiate the adoption. In conclusion we accordingly decide that the adoption Was good and valid.
96. The adoption of Narayya (17) by Papamma Row being valid, it is next necessary to consider what was the effect of that adoption as regards the Medur Estate. That estate was obtained by Narayya's father, Venkataramayya (15) by a partition which he made with his brothers before Narayya's birth. On his birth Narayya became a co-sharer with his father in that estate. They were the only members of the joint family to which the estate belonged. Venkataramayya subsequently died, and then Narayya became the last surviving male member of the family. Under the Mitakshara law, which governs the parties, the Medur estate then vested in Narayya solely and exclusively, though his mother, Venkayamma, could claim maintenance from it. This was the state of things when Narayya was adopted by Papamma, and the question in dispute is whether Narayya continued to be the owner of the estate notwithstanding his adoption, or whether he was divested of that property by reason of his being adopted into another family. There is no question but that when one of several coparceners leaves his natural family by being adopted into another family he at once loses all his rights in the coparcenary property, and he cannot thereafter claim to inherit or succeed to any property by virtue of his relationships in his natural family. It is also conceded on the other hand that if he were possessed of any self-acquired property at the time of adoption, his right to it would be unaffected by the adoption. But the case with which we have to deal is one midway between these two. The Medur Estate was not the self-acquired property of Narayya, nor was it, at the time of adoption, coparcenary property in which any other person had a share. It was ancestral partible property which vested solely and absolutely in him because he was the only surviving member of the joint family to which it previously belonged.
97. We are aware of only one case in which the question has been actually decided, and that is the case of Behari Lal Laha v. Kailas Chunder Laha (1896) 1 C.W.N. 121.
98. There Mr. Justice Amir Ali held that although 'adoption prior to the vesting of the inheritance entails loss of the right of claiming any share in the estate of the adopted person's natural father or natural relations, yet the interest which is once vested in a son upon the death of a father is not divested by his subsequent adoption into another family.
99. It is, however, contended by some of the parties to the present suits that this view of the law is incorrect, and it is, therefore, necessary to examine the text of Hindu Law which refer to the matter. It must be admitted that they are by no means explicit, but we are of opinion that they do not require us to dissent from the view of the Calcutta High Court just quoted, and that we would not be justified in holding that a person adopted loses thereby any rights of which he is not clearly deprived by the terms of the law to which he is subject.
100. The texts of Manu which refer to the matter are verses 141 and 142 of Chapter IX and are translated as follows by Buhler at page 355 of Volume XXV of the 'Sacred Books of the East' edited by Max Muller:
141. Of the man who has an adopted (Datrima) Son possessing all good qualities, that same (son) shall take the inheritance, though brought from another family.
142. An adopted son shall never take the family (name) and the estate of his natural father; the funeral cake follows the family (name) and the estate, the funeral offerings of him who gives (his son in adoption) cease (as far as that son is 'concerned').
101. The texts of Manu are to be understood in the sense in which they are interpreted by the Hindu Commentators of recognized authority. The above text is quoted in the Mitakshara, Chapter 1, Section 11, Verse 32 and is thus translated at page 422 of Stokes Hindu Law Books - 'A given son must never claim the family and estate of his natural father. The funeral oblation follows the family and estate, but of him who has given away his son, the obsequies fail.'
102. In the Dattaka Chandrika, (Stokes' idem page 640) the reference is as follows:
On the subject (of adoption) Manu says:
A given son must never claim the family and estate of his natural father. The funeral cake follows the family and estate : but of him who has given away his son the obsequies fail.
It is declared by this, that through the extinction of his filial relation from gift alone, the property of the son given in the estate of the giver ceases; and his relation to the family of ' that person is annulled.
And accordingly, since extinction of relation to the family (of the natural father) and so forth is shown, and as a text recites let the father initiate his own sons', - the initiatory rites even of the adoption, which are yet to be completed subsequent to adoption, are to be performed by the adopter : but those already performed by the natural father are not to be cancelled.
103. Again Madhaviya's Commentary, as translated by Dr. Burnell (page 24 Dayavibhaga), says 'Dattaka sons do not share in the wealth of their natural father.' Thus Manu says: - 'A Dattrima son may never share in the family or property of his natural father, the pinda follows the family and estate : the funeral offering departs from the giver (of a son).
104. There are the principal commentators of special authority in South India. The Dattaka Mimamsa, which is of special authority in Bengal, follows the interpretation given in the Dattaka Chandrika. See Stokes' idem page 599. The same passage of Manu is referred to in the Mayukha (of special authority in Bombay) as follows : - Therefore says Manu Chapter IX, v. 242 : - A given son shall never claim the family and estate of his natural father; the pinda (the obsequial oblation) which follows the family and the heritage and the Shraddha and other funeral ceremonies of the giver cease.' 'Cotrarikthanujah' (means) 'what goes along with the family and, the inheritance, the two expressions being generally co-extensive' (Mandlik's Hindu Law, page 59.)
105. We do not think that there is anything in these passages which necessarily carries with it the idea that the adopted son is divested of property which is his own absolutely at the time of adoption. The more correct view seems to be that by the adoption the filial relationship, as the author of the Chandrika says, is extinguished in one family and is created in the other family, and that thereafter the person adopted cannot claim or take any property in his natural family by virtue of the extinguished filial relationship therein. The fact that under the Dayabhaga law in force in Bengal a son has no vested coparcenary interest with his father in ancestral property and that his interest in ancestral property of the father only accrues on the father's death rather favours the view that Mimamsa when adopting the interpretation of the Chandrika had in mind the loss of rights that might accrue after the date of adoption rather than rights to property which had already vested.
106. In the case of Moniram Kolita v. Keri Kolitani, I.L.R. (1879) 5 C. 776, the Privy Council referred to 'what appears to be the general rule of Hindu Law that an estate once vested by succession or inheritance is not divested by any act which before succession or incapacity would have formed a ground for exclusion from inheritance' and held that it had* not been established that a widow's estate formed an exception to that rule so that she should be divested of it by un-chastity after it had vested in her. In the present case we must hold that it has not been established that an ancestral estate which has become vested in a person wholly and absolutely prior to his adoption is divested by reason of the adoption. We think that the general rule of Hindu Law referred to by the Privy-Council applies to this case, and that we would not be justified in imposing a disability on an adopted son which is not clearly imposed by the Hindu Law. The Vakil for the Medur reversioners, however, relies strongly on the opinion expressed by Mr. Sarkar at pages 119, 120 of his Hindu Law, 2nd edition, published in 1903 in which he lays down the principle that adoption operates as the civil death of the person adopted in his natural family and as a re-birth in his adoptive family, and he, therefore, holds that on adoption the succession opens to all the property possessed at the time by the person adopted. This view is directly opposed to Mr. Sarkar's earlier view as stated in his Tagore Lectures on Adoption, 1888, published in 1891 (pages 389 and 390) in which he states that 'according to the Mitakshara Law, a son acquires by birth a right to the ancestral property in the possession of the father, and an undivided coparcenary interest is vested in him as a member of the family corporation. The vesting, however, is imperfect as the interest is liable to variation and also to extinction by reason of any subsequent disqualification. The interest is acquired in the character of a member of the family, and when that character is lost by adoption, the interest also ceases. In this way you may explain as to how a Mitakshara son on being given away by his father in adoption loses his vested interest in the ancestral property.' But the question assumes a different shape when the boy is full owner of any property such as what was inherited by him from his maternal grand-father or uncle before adoption. There appears to be no reason why a child given in adoption should be divested of property of which he is the absolute master at the time of affiliation. An adoption does, no doubt, cause a complete change of lineage, put an end to the status arising from the natural relationship, and extinguish the capacity of inheritance in the character of a relation by birth : but it is nowhere represented to 'be equivalent to civil death so as to extinguish the adopted son's existing proprietary rights.'
107. A great deal of argument was addressed to us with reference to the exact meaning of the Sanskrit word 'haret' in the text of Manu which is variously translated 'claim,' take share and which Sarkar in his latest work translates 'take away.' On the one side it was pointed out that in some of the slokas of Manu the same, word is translated and can properly be translated only by the word 'inherit' while, on the other side, attention is drawn to at least one passage where it cannot refer to inherited property. The arguments do not seem to bring us any nearer to the question which has to be decided.
108. We may, however, say that we are not prepared to accept Mr. Sarkar's present view that Manu and the commentators have hitherto not been correctly translated and that this has led to erroneous views as to the consequences which flow from adoption.
109. We think too that there is great danger in speaking of adoption as civil death and re-birth, and in attempting to enforce the consequences that might be supposed to logically flow from those, conceptions.
110. It is clear from the passage in the Dattaka Chandrika (page 64, Stokes' Hindu Law Books) which we have already quoted that the idea of re-birth in the new family is only partially given effect to, for it is expressly provided that initiatory rites which the boy has undergone in his natural family are not to be cancelled and performed afresh in his adoptive family. He is only required to perform in the new family those ceremonies which had not been performed in the old. For the purpose of these ceremonies-there is no idea of death or re-birth. There is only one continuous existence. It would be easy to show that in other respects also the analogy is misleading. It seems to us unsafe to determine the rights of parties by a reference to any such analogies,' rather than by the exact language of the texts and the general principles of the Hindu Law in cases where the texts do not, definitely decide the question raised.
111. In this connection we may observe that the District Judge has allowed Mr. Sarkar and others to give evidence on commission as to the meaning of the various texts, and as to the correct view of the Hindu Law on the question in dispute. The question in dispute is not one of foreign law and we are not aware of any provision of the Indian Evidence Act or other law which renders such evidence admissible in a case like the present.
112. We are of opinion that the adoption of Narayya (17) did not operate in law to divest him of his rights in the Medur Estate.
113. The result of our findings is that Appeals Nos. 122 and 123 of 1900 and Appeal No. 32 of 1904 must be dismissed with costs, and Appeal No. 41 of 1904 must be allowed in regard to' one-third of the Medur Estate including the moveables appertaining to it and it is dismissed in other respects. Proportionate costs will be given to both, sides in this Court in Appeal No. 41 of 1904 and in the lower Court in Original Suit No. 44 of 1899.