1. These two appeals are preferred from the decree of the District Court of Coimbatore in O. S. 7 of 1891, No. 63 by defendants 4 and 5 and No. 64 by defendants 7, 10, 11, 13 to 15 and 17 to 20.
2. The properties in dispute belonged to Chithambara Mudali. Upon his death they devolved on his adopted son Vencatachela Mudali, the last full owner. He died unmarried during his minority and his adoptive mother Muthammal succeeded him. Upon her death in May 1890, several persons claimed the right of succession.
3. The three plaintiffs and defendants 1 and 2, the third defendant, and defendants 4 and 5 are the several classes of relations who claimed the succession. The third defendant claimed to be a Dayadi or Sapinda of Venkatachela Mudali, the last male owner and also his mother's sister's son.' The 4th and 5th defendants are the daughters of two sisters of Venkatachela Mudali, and the plaintiffs and defendants 1 and 2 are the daughter's sons of Venkatachela Mudali, the senior, who was the paternal uncle of the last male owner. The subjoined genealogical table shows how the several claimants are related to each other and to Venkatachela Mudali.
4. The eight issues fixed in this case indicate the contentions of the parties now in possession of the several items of property and the several defences set up by them. The Judge decided the 1st issue for plaintiffs and the 2nd and 3rd issues against 3rd defendant. As to the 5th and 8th issues, his decision is that Muthammal did make a gift of the lands to the several defendants, but that it is not proved that she had authority to do so.
5. As plaintiffs and defendants 1, 2, 3, 6 and 12 entered into a compromise pending decision, the Judge has recorded no findings on the 4th, 6th and 7th issues.
6. Against his decision two sets of defendants have appealed.
A. S. 63.
7. The appellants' first contention is that the judge's finding that 3rd defendant is not a Dayadi is contrary to the weight of evidence. The judge has stated his reasons for his finding in paragraphs 4 to 6 of his judgment. On reading the evidence, we see no sufficient reason to come to a different conclusion. The evidence consists in the main, (1) of declarations made by Muthammal and (II) of those alleged to have been made by Chidambara Mudali, her husband and (III) of statements of witnesses that he is a Dayadi and that he performed the funeral and other obsequies of both Chidambara Mudali and his widow. The witnesses who depose in appellants' favor and to admissions of 3rd defendant's relationship are mostly unconnected with the family and their statements are not consistent with each other. In endeavouring to help the appellants, several go too far when they say that 3rd defendant was not only a gnati but also a coparcener or undivided gnati and that he performed Chidambaram's obsequies while the last male owner, his adopted son, was alive. It is true that there is documentary evidence in support of Mnthammal's admission but as observed by the judge, it is not safe to attach weight to it. Admittedly the 3rd defendant is her sister's son and she made the admission on occasions when she had reason to be specially kind to him. The contention that he is a gnati or Sapinda must be disallowed as not proved.
8. Another contention in appeal is that 5th defendant's 1st witness, Subbaraya Mudali is also a Sapinda of the last full owner. The judge refers to Subbaraya Mudali in paragraph 4 of his judgment and remarks that he has made no attempt to secure the reversion. We observe further that 4th and 5th defendants did not plead his status as a Sapinda in answer to plaintiffs' claim or ask for an issue in regard to it.
9. It is, however, admitted that 3rd defendant is the son of Muthammal's sister and therefore mother's sister's son of the last male owner. The judge finds, and it is also proved, that during her life, Muthammal gave portions of the property in dispute to 4th and 5th defendants, who are her daughters with the consent and approval of 3rd defendant and his wife and to the other defendants. As plaintiffs' relationship to Venkatachella Mudali is admitted, the question of law arising for decision is whether as the sister's daughters of Vencatachela or by reason of the consent of his mother's sister's son, the 3rd, 4th and 5th defendants exclude plaintiffs from succession. In paragraph 2 of his judgment the judge relies on the table of succession in Mayne's Hindu Law, Sections 466 and 535 and concludes that uncle's daughter's sons are preferable heirs as compared either with sister's daughters who have no place among Bandhus, or with the maternal aunt's son who is only related on the mother's side. Appellants' Pleader contends that male Bandhus are to be preferred to females only when they belong to the same and that appellants are entitled to the revision. In support of his contention he relies on the case reported at Muthusami v. Muthukumarasami, I. L. R 16 M 23 On the other hand it is urged for Plaintiffs that as Bhinna Gotra Sapindas on the father's side, they are the next reversioners and reliance is placed on the decision reported at Umaid Bahadur v. Uddi (sic), I.L.R. 6 C 119
10. Where of opinion that the contention on Appellants' behalf cannot supported. As sister's daughters they are not Bandhus in the sense that Bandhus are Bhinna Gotra Sapindas, as stated in Chapter II Section 5 placitum 5 of the Mitakshara and if they are heirs, they can only take after them as female relatives according to the decision of the High Court reported at I. L. R 16 M 23
11. There can be no doubt that whatever their rights may be as realtives, they cannot exclude male relatives who, as Bhinna Gotra Sapindas or regular Bandhus are entitled to succeed under the Mitakshara Law in preference to them.
12. The learned pleader for the appellants argues that under Hindu. Law males exclude females only when they belong to the same class of relatives; but to this proposition we cannot accede. Take for instance; the case of competition between a sister and the son of another sister, and it cannot be denied the latter excludes the former, because he is a Bhinna Gotra Sapinda whilst the sister is a mere relative and being a female can offer no funeral (sic) Again it is a well known principle of Hindu Law that wherein the table of succession one class of heirs tanks above another, the class that is named first must be exhausted before the class that is named next can be let in as in the case of a brother and nephew, or of nephew and brother's grandson. As female relatives form a class inferior to male Bhinna Gotra Sapindas as an the case of a sister and sister's son, plaintiffs as daughter's sons of the last male owner's paternal uncle, are preferable heirs to the appellants, who are only his sister's daughters who if as such, in the list of heirs at all, have a place therein as mere relatives before the (sic) perty escheats to the crown. As between plaintiffs and the 3rd defendant the latter is a Bandhu ex parte materna (sic) are Bandhus ex parts paterna. The decision in (sic) Muthukumarasami, I. L. R 16 M 23 is not in (sic) the competition was between a maternal uncle and the father's paternal aunt's son both of whom were Bhinna Gotra Sapindas and Bandhus.
13. This appeal must fail and is dismissed with costs.
R. A. 64.
14. As regards appeal No. 64, it refers to the contention which forms the subject of the 8th issue. The properties to which it relates passed into appellant's possession from that of one Thanathammal, a widow of one of the first cousins of the last male owner, No. 14 in the pedigree. The Judge finds as a fact that Muthammal the widow of Ghidambara Mudali and his adopted son--the last male owner--executed a deed by way of partition assigning certain lands to the mother and daughter in 1861. He was of opinion that Muthammal had no right to convey the lands absolutely and that her son was then a minor, but that effect could be given to the alienation as a provision for maintenance which it was competent to Muthammal to make. On this view, he held that the alienation was not binding upon the reversioners as a body after the demise of Thanathammal and that in the meantime, the plaintiffs were not entitled to claim possession, and passed a decree accordingly. He declared the title of plaintiffs as reversioners as a body after Thanathammal's death, because he did not desire to adjudicate on the effect of 1st plaintiff's attestation of document IX whereby Thanathammal and her daughter Parvati, who is 1st plaintiff's wife, conveyed the lands in dispute for Rs. 6000 in July 1876 to one Aravan Pusari. The contentions on appeal are (1) that no declaration ought to have been made (2) that defendants 3, 4 and 5 are as Bandhus preferable heirs (3) that a suit for a declaration of title was barred by limitation, and (4) that it was competent to Muthammal as the guardian and adoptive mother of her minor son to alienate absolutely a portion of the property in lieu of maintenance. We don't think that the Judge's decree can be supported so far as it is against these appellants. He finds as a fact that the alienation was made by Muthammal and her minor son and that what was conveyed was an absolute estate. As the last male owner was alive, the alienation was not that of a widow's estate by a widow, but that of an absolute estate by the guardian of the last male owner. It was open to any next friend of his to have stepped forward during his minority and set aside the alienation on the ground that it was an act done without adequate necessity or in excess of the limited authority of a guardian. As the alienation took place in 1861 and the present suit was brought in 1891, a suit to set it aside would be barred, if the minor were still alive and his reversioners cannot take a higher position. The Plaintiffs claim must therefore held to be time-barred.
15. This appeal must be allowed and the Decree of the Judge set aside, so far as it refers to the properties in appellants' possession with costs throughout.