1. The principal question in the case is whether the estate now known as the Zemindari of Udayarpaliam is the partible property of the plaintiff's family or is hold as an impartible estate. The District Judge has found that the original palayam as it stood until the expulsion of the 1st defendant's ancestor in 1765 was, like other palayams in the Carnatic, an impartible estate. Having read the evidence discussed by him and heard arguments upon it, we are of opinion that the conclusion at which he has arrived is right and that there can be no doubt that the palayam was up to 1765 held by one member of the family only not being subject to the ordinary rule of Hindu law.
2. The question regarding which there is the chief contest is whether, in view of the circumstances in which the sannad was granted in 1817, the estate comprised in that sannad came to be held by the family on terms different from those on which the original palayam was enjoyed. The plaintiff's case is that the estate comprised in the sannad was an entirely new estate, and that the quality of impartibility was never attached to it. The main grounds for this contention are that from 1765 till 1817 the Zemindari was not, it is alleged, in the possession of the family at all, and the estate granted in 1817 comprised only part of that which the former Poligars had held. It is urged that a new grant was made of free grace to the Istimirar Zemindar and that there was no intention that he should take it with the incident of impartibility which attached to the old palayam. What little is known of the palayam prior to July 1801 is contained in Mr. Wallace's Report of 30th May 1802. Prom this it appears that the Poligars of Arialore and Udayarpala-yam had held uninterrupted possession of their respective palayams from very early times until after the siege of Madura in 1765, when they were expelled by the Nawab of the Carnatic and fled to Mysore. It further appears that with Hyder's aid, they returned in 1780 and drove out the Nawab's amildars and held 'precarious possession' of their palayams until 1783 when they were won over to support the Company, and that during the first assignment of the revenues of the Carnatic to the Company in 1785, they were re-placed in possession of their palayams as renters, but, having failed to pay their kist punctually, were imprisoned and the management of the palayams was entrusted to one of the chief servants of the Poligar of Udayarpalayam until the country was restored to the Nawab. In 1793 the Company again assumed the control of the country, and during this period, which is referred to by. Mr. Wallace as the second assignment, the Poligars again held possession as renters under the Company. The Poligar during the period from 1765 to 1792 was the father of the Istimirar Zemindar. On his death in 1792 he was succeeded by the Istimirar Zemindar's elder brother of the half blood who died in 1801. In 1798, Mr. Wallace goes on to say that Chinnia Mudali became the manager and that a monthly allowance of Es. 1,000 was made to the Poligar who also retained his allowance as Kavalgar and his cumbatum lands. In an earlier letter of August 1801 Mr. Wallace had spoken of this Chinnia Mudali as a mortgagee. There is no further evidence as to the terms on which he held. In the same letter Mr. Wallace points out that whatever was the reason for the expulsion of the Poligars by the Nawab in 1765, it was, in fact, disregarded by the Company's Government for, as he says, 'During the assignments of the country the Poligars were restored to every degree of power which our temporary authority over the Carnatic and southern provinces admitted of our conferring in acting thus.' The fact that the Poligar retained his position as Kavalgar appears from other documents, e. g., Exhibits I and II, dated respectively 1792 and 1797, as also from later documents. That he was not in actual possession of the palayam lands but held his fort only when the Company took possession of the country in 1801 seems abundantly clear. But what precise cause led to his deprivation and whether a temporary dispossession or an absolute forfeiture was intended by the Nawab is matter for conjecture. What is clear is that on both occasions when the Company had the power to do so, they reinstated him in possession as renter, and when Chinnia Mudali was in possession for a short time, the Poligar received an allowance and also retained throughout the office of Kavalgar with its emoluments.
3. Some stress is laid on the way in which the palayam is dealt with in the treaties of 1787 and 1792. In the latter treaty it does not appear in the list of estates, the peishcush of which is by the 5th article assigned to the Company. It is mentioned in the second schedule containing a list of the districts, the management of which the Company was in certain events authorised to assume. Then it is associated with Trichinopoly, the phrase being 'Trichinopoly including Worriorpollium and Arialur.' It will be seen from the language of Mr. Wallace's letter of 10th August 1801 that at that time the palayam was not considered part of the district of Trichinopoly, It would have been a strong point in favour of the defendant if the palayam had been mentioned in the first schedule, and the omission of it is certainly a point to be noted against him. But the point is of no great importance, because there is no certainty that the enumeration of the palayams given in the first schedule is an exhaustive enumeration. By the former treaty of 1787 palayams as well as other lands were pledged to the Company. That seems clear from Article 5, yet the schedule mentions no palayam by name except Worriorpalayam, while it includes the provinces of Trichinopoly and Madura. If there were palayams in Trichinopoly and Madura other than those mentioned in the first schedule of the second treaty, then it would seem that those palayams must have been intended to be included in the second schedule. Otherwise it must be supposed that the Company gave up in 1792 some of the security which they had under the earlier treaty, which seems highly improbable. Altogether, we do not think that the treaties throw any new light on the question. We know from other sources that in 1787 and 1792 the Poligar was not in actual possession. On the 31st July 1801 the final treaty was concluded with the Nawab and a proclamation of even date announces to all Zemindars, Poligars and Cavalgars, &c;, that the Government of the country and in particular the right of collecting revenue has passed to the Company. In December of the same year, a further proclamation is issued dealing with the matter of disarmament and also announcing the intention of introducing a system of permanent assessment. Meanwhile, Mr. Wallace had taken charge of the district of Trichinopoly, and he writes several letters which are filed--the last dated in December refers to the fort occupied by the Poligar.
4. On the 2nd January 1802 Mr. Wallace announces the death of the Poligar, and after describing the unsettled state of the country, he concludes by asking for orders as to the manner in which he is to regard the Poligar's brother, '' whether as successor to the claims of the deceased or not.' The answer to this letter from the Government is contained in a letter of 27th February 1802 referring to the abovementioned proclamation of December, dealing particularly with the question of disarmament, and in conclusion declaring the intention of Government to 'appoint the brother of the late Poligar of Udayarpalayam to succeed to that palayam on a Zemindari tenure' and desiring that the usual sannad may be prepared and submitted. This, it is said, is in conformity with the principle of the Company's Government and agreeable to the recommendation of the Board. On the 8th March 1802 there is another letter from the Board to Mr. Wallace direct, informing him that the Poligar's brother is to be re-instated the palayam as 'soon as a sannad of investiture can be prepared'
5. From these letters it would appear that the intention at the time was to effect an immediate and complete re-instatement of the Poligar, the preparation of the sannad being regarded as little more than a formal condition. 0n 30th May 1802 Mr. Wallace writes the report which has already been mentioned at length. His opinion is in favour of restoration. That, in his view, is the policy which justice and expediency dictate, but he doubts the wisdom of immediate restoration, apprehending consequent want of security and protection to the people of the district. He proposes as a temporary measure a monthly allowance of Rs. 1,000 to the Poligar.
6. The proposal of Mr. Wallace is forwarded by the Board to Government with their approval. In July--in which month the Regulation XXV of 1802 was passed--the Government deal with the matter of the Poligars in a letter, dated the 17th. It begins by stating that any expectations entertained by Poligars must he founded on the presumed lenity and moderation of the Government and refers to the scheme of permanent settlement announced in the proclamation of the 1st December 1801 and to the need for an inquiry into the value of the lands with a view to the commutation for military services formerly rendered. In the result it states that pending the necessary inquiry ten per cent. on the net revenue of the palayam is to be paid to the Poligar. The purport of this order is communicated to the Collector in a letter of the 12th August 1802. The allowance of 10 per cent, with arrears form the date when the Carnatic was ceded to the Company was sanctioned; and from that time the Poligar must have received the allowance remaining also in charge of his kaval duties. No change took place till 1814 when the question was re-opened by the Collector and the Board. The proposal then made is to grant to each Poligar a jaghire bringing in an average of 38 per cent of the average gross collection and to be assessed in the sum of a hundred pagodas as a nominal rent. The Collector is instructed to ascertain the views of the Poligars. At the same time it is said that the Board does not mean to depart from the intention communicated to the Poligars, i.e., the intention to restore them to the management of their palayams under a new arrangement.
7. The Collector's report announcing the Poligar's consent is dated the 8th September 1814. Before March 1816 another proposal seems to have been made, for, in that month the Government sanctions the plan by which each Poligar was to have a casaba yielding 10 per cent, of the gross collections and it is stated that the Poligars had assented to the plan. In December 1816 the Collector sends to the Board a report and asks for further instructions as to Udayarpalayam. In this report he mentions that the Poligar had been receiving star pagodas 8,117-33-32, of which 4,073-24-10 were received on account of Kavali maniems and cannevery. On the 2nd January 1817 the Board give the required instructions, directing that the value of the villages to be given over to each Poligar is to be equal to the average gross amount of the Poligar's income from whatsoever source derived. In this letter it is expressly said that the villages were to be given on zemindari tenure, the idea of a jaghire having been abandoned. These instructions being approved by Government, a conditional sannad was at last granted on the 23rd December 1817 and the Poligar was put in possession.
8. Before dealing with the questions which arise on the proceedings of Government between 1802 and 1817, it may be convenient to narrate the events which happened after the granting of the sannad taking first, proceedings other than suits. For, reliance is placed on these facts as indicating the manner in which the estate was treated alike by the authorities and by the members of the Zemindar's family.
9. In May 1823, the Board directs the Collector to send up a report giving a list of all the ancient Zemindaris in his district not including those created in conformity with the principle of permanent settlement,' but only such as are held by the representives of ancient samasthanams whether now known by the name of Zemindars, Poligars,' &c;, and in reply the Collector names Udayapalayam and describes it acording to a tabular form. It may have been a mistake on the Collector's part--though a mistake as to so recent an event is not likely--but it does not appear that the mistake was corrected, and we find that in December 1821, the Collector had been asking for and presumably had received any grant, parvana or sannad relating to the Zemindari which the Zemindar was able to furnish. In August 1835 the Istimirar Zemindar dies. The Collector reported the fact to the Board and the recognition of his eldest, son. He also informs the new Zemindar that a day has been fixed for the installation and that directions have been given with regard to the honours to be paid by the Devastanams. The Collector's proceedings are confirmed by the Board. In the same month of August an arzi was sent to the Collector complaining of the order passed by the Collector and alleging that the petitioners, vis., the younger brother of the new Zemindar, the plaintiff's father, and his mother, were entitled to the Zemindari inasmuch as they had set fire to the corpse of the Istimirar Zemindar. A custom to that effect is alleged, it is not stated in what manner the petitioners are entitled to enjoy the zemin and nothing more is heard of the petition. The second Zemindar died in January 1836 leaving an only son, an infant, on whom, in the Colloctor's opinion, the estate legally devolved. In June, the Collector recommends that the estate be taken in charge of the Court of. Wards, assigning as one- reason the hostility of the two brothers above-mentioned. These brothers, he says, are entitled to receive some support from the, estate. These recommendations are approved by the Board and by Government. And accordingly on the 28th June the Collector informs the elder of the two brothers what sum will be allowed for them, for their mother Oppayi, and for plaintiff's grandmother. A further report on the matter was sent in August. In 1842 the third Zemindar dies and his uncle, the elder of the two brothers, is recommended as his successor. He is accordingly put in possession of all the property.
10. Again an arrangement is made for the- maintenance of the other members of the family including the younger of the two brothers and the plaintiff's father. Before this was done there appear to have been petitions submitted by Oppayi and by Subbammal, both of which were rejected. In 1843 after the fourth Zemindar had come into possession he is adjured by the Collector to make a proper arrangement with Oppayi, and in 1850 and 1852 similar remonstrance's are addressed to him with regard to his brother's maintenance.
11. The first litigation of which we have evidence arose from a claim made against the Istimirar Zemindar just before the sannad was issued. The plaintiff apparently was a member of a younger branch of the family and he had previously in 1812 claimed maintenance out of the 10 per cent, allowance made to the defendant. The actual claim was for a moiety of the same allowance and it was rejected on the ground that the Zemindari was one of those inheritances which, according to the usage and custom of the country, was not divisible into shares. This is the solitary instance in which such a claim has been made. In 1831 a suit was brought against the Istimirar Zemindar by Janaki, representing her son, for maintenance. The defence was the alleged illegitimacy of the plaintiff's father, but without trying this question the Sadr Adaulat dismissed the suit on the ground that the Zemindari was the self-acquired property of the defendant. In 1855 Eajammal, the third wife of the Istimirar Zemindar, sued for maintenance, the defendant being the fourth Zemindar. One of the defences was that the plaintiff had not been legally married, but the Sadr Amin allowed the claim on the ground that other widowed ladies in the family received maintenance. There was an appeal to the Sadr Court which was dismissed. In 1860 the plaintiff's father brought a suit against the fourth Zemindar, there was an appeal and a second appeal, the result of which was that the Civil Judge was directed to find what amount of maintenance was payable and the decree finally made was confirmed on appeal by the Judicial Committee. The judgment in this appeal is put in by the plaintiff apparently for the reason that it was assumed therein that the Zemindari was the self-acquired property in the hands of the Istimirar Zemindar.
12. The last suit was brought in 1887 by Periasami) the plaintiff's elder brother. Being a minor, he sued by his mother as next friend. By the sanction of the Court the matter was compromised on the terms that the defendant should pay for the support of the plaintiff and his two brothers the sum of Rs. 3,000, and for the future quarterly sums of Rs. 2,250 and a further sum of Rs. 30,000 for costs and past maintenance. The decree declares that the 1st defendant as belonging to the senior branch of the family and as heir according to usage shall possess the zomin and the property attached thereto. On the same day a release was executed by the mother on behalf of her three sons. This decree was executed and moneys due under it wore received by the mother as long as Periasami was a minor and afterwards by Periasami himself till 1897. Periasami died in April 1897 and the present suit was filed in November. It will be observed that during this long period of 80 years, from 1817 to 1897, there is nothing in the action of the Government officers or of the members of the family to suggest that the estate was the partible property of an undivided Hindu family, while there is much to indicate that they regarded it as an impartible estate. There were during that time four successions to the Zemindari and there were constant petitions, disputes and suits with regard to the amount of maintenance which the Zemindar ought to allow to various members of the family, yet in no case was a partition claimed, though the sons of the Istimirar Zemindar were living apart from, and were hostile to, each other. The plaintiff's mother was advised in her suit (22 of 1886) by two of the most eminent Hindu lawyers in Southern India (now Sir Subrahmania Aiyar and Sir Bhashyam Aiyangar), It is difficult to believe that she would have agreed to the compromise and release effected in that suit on behalf of her sons, and that none of the other members of the family would have claimed a partition during so many years, except on the supposition of a general belief in the family that the estate was impartible.
13. The arguments on both sides turned mainly on the effect of the action of the authorities between 1801 and 1817, and two questions were discussed. What was the intention of Government in 1802 and was there any change of that intention in 1817? It is argued that if in 1802 it was intended to restore the palayam as it stood in former times, there was in later years a change of mind on the part of the Government, and the final resolution at any rate was to create a perfectly new estate. Whatever may have been the intention of Government in 1802 with regard to the question of impartibility, we can find nothing in the evidence to justify the idea that there was any such change of intention as is suggested. The determination of Government had been communicated to the poligar, probably in the course of the year when it was formed. From that determination the Board expressly declares that there was no intention to depart. It was only after consultation with the poligar that the plan conceived in 1814 was to be worked out, and as we have seen the final arrangement was made with the poligar's assent. The professed object of the Board was to give the poligar an 'equivalent to the benefit expected to be derived under the Zemindari tenure.' Instead of being put in possession of a large tract of country which, as the Board feared, the poligar would not be competent to manage, and having to pay a proportionately large peishcush, he was to have a smaller territory charged with a nominal rent only. There was certainly a change in the mode in which the resolution of 1802 was to be carried into effect, but it was a change made with the poligar's consent and otherwise the resolution was allowed to stand. The fact that some of the villages included in the old palayam were not included in the Zemindari is, in this view of the case, immaterial. They were excluded because the poligar agreed to give them up in consideration of easier terms in regard to peishcush. When it is objected that the poligar was accepting the equivalent of only 10 per cent, in lieu of the 33 per cent which, if the whole palayam had been restored on the ordinary terms he would have received, it must be remembered that out of the 33 per cent. the Zemindar would have had to meet the expenses of management of the whole palayam and also take the risk of bad seasons, being at the same time always chargeable with the 66 per cent. payable to the Government amounting to about a lakh of rupees. Evidently it was thought that when these things were taken into account the Zemindar would not receive much more than 10 per cent nett, for, the Board on the 12th May 1814 say that a jaghire bringing in something more than their present allowance would be sufficient. It is clear that the Board, as far at least as their expressed intention went, did not mean that the Zemindar should be worse off pecuniarily than he would have been if put in possession of the whole palayam. In the result the villages included in the sannad were estimated to yield a sum slightly exceeding the amount which the poligar had been receiving on account of the 10 per cent and in addition were included villages sufficient to bring in a sum equal to the average annual amount of the kaval collections.
14. There is nothing, as far as we can sec, in the terms of the sannad to justify the idea that anything beyond a settlement was in contemplation. The reference to 'former privileges' probably had regard to the kaval fees hitherto enjoyed by the Zemindar and perhaps also to the lands 'relinquished' by him in accordance with the Government Order of the 29th March 1816. Except for this reference, the instrument is not materially different from that which was given in the Devarakotta case. The operative part of the instrument beginning with the third paragraph merely declares the permanent annual jarama which has been fixed on the Zomindari.
15. No evidence is adduced as to the reasons for the delay in effecting a settlement with the poligar. It is not shown that anything occurred to make the Government alter its mind. It can only be inferred that, having regard to the condition of the country and perhaps the character of the poligar, the authorities did not think it prudent to lay upon him such a large responsibility as the possession of the whole palayam assessed in the ordinary way would have involved. The inclusion of villages on account of the kaval fees theretofore enjoyed is not a fact which can be used against the Zemindar. The functions of kavalgar had boon attached to the office of Poligar and he had been remunerated by foes or lands. The Government might have resumed the lands or withheld the emoluments and dispensed with his services. Their recognition of the Zemindar as Kavalgar up to 1816 and the compensation made to him shows the desire of Government that the Zemindar's pecuniary position should not bo prejudicially affected.
16. Going back to the circumstances in which the Resolution of 1802 came to be made, we have now to consider whether at that time the Government had it in mind to alter the incidents of the Poligar's tenure as between himself and the members of his family. The principles' of the Company's Government in obedience to which the Government acted in regard to the Poligar included the cessation, of the military service formerly required by the Poligars, the assurance of immunity and of security of tenure to the Poligar and other inhabitants and the establishment of a system of permanent assessment. On those principles the Government assorts that it intends to act notwithstanding that in their opinion the Poligar could not claim such treatment as a matter of strict right. It must be remembered that, according to the view then entertained, the tenure of Zemindars generally was regarded as scarcely conveying any idea of property in the soil (sec paragraph 4 of instruction to Collector, page 318, fifth Report, and also preamble to Regulation XXV of 1802, Merangec case L.R. 5.IndAp 310.
17. We, however, find that the Company's Government consistently and continuously admitted the claims of the Poligar as a matter of justice, if not of strict legal right. When they had temporary authority during the two assignments they had restored the Poligar to all the power and authority in the palayam which, at the time, they could give. When Chinuia Mudali was temporarily in possession (under circumstances which are not explained) they secured him an allowance of. Rs. 1,000 per mensem, 'and from the day the Carnatic was ceded to the Company' ho was paid 'an allowance of 10 per cent on the net revenue of his palayam '
18. The allowance of 10 per cent, on the net revenues is consistent with the view that the Poligar's right was acknowledged in fact, for that was the usual allowance made to Poligars or other ancient landholders during the pendency of an enquiry as to the amount of peishcush which should be charged on their estates permanently and entered in the sannads which were then being prepared for all estates in order to carry out the policy of the permanent settlement. This appears from paragraphs 41 and 42 of the instructions above-mentioned (page 327, fifth Report). If immediately after the order of February 1802 the Poligar had been put in possession and a sunnad issued under the Regulation of that year, and still more if, as in the Hunsapur cane, no sannad has been issued, it could hardly be suggested that there was any intention to alter the impartible character of the estate. The exemption from military service and the granting of a sannad certainly could not be deemed to indicate such intention. What difference then can it make that the Poligar not being put in actual possession, was for fifteen years after the intended restoration had been announced and treated as a landholder with whom a settlement had yet to be made? The argument on the plaintiffs behalf must be that the withholding of possession justifies the inference that the Government intended to alter the character of the estate or make a now grant. With that argument we have already dealt. To us it appears more reasonable to hold that the Government recognizing the claims of the Poligar, and intending ultimately to give full effect to them, never considered the question of impartibility, and therefore must be taken to have intended that, except so far as the tenure might be altered by the sannad, the prior state of things should continue. The Nuzvid case on which reliance was placed is distinguishable from the present in more than one respect. There, for the period between 1793 and 1802 no member of the family was in possession, apparently their right were altogether in abeyance, it is not stated that any allowance was received by any of Narayya's sons. In 1802 six porgunnahs, being only a small part of the original Zemindari, were granted to the second Ramachandra, while the larger part of the Zomindari was granted to the eldest son in whoso hands the whole Zomindari had been in 1793. Obviously in this case Ramachandra took a new estate, though it might have been otherwise with the eldest son as to whose case the Judicial Committee refrained from expressing any opinion. In addition there was evidence of conduct subsequent to 1802 indicating the opinion prevailing in the family, whereas in the present case all the evidence of that kind points to the opinion that impartibility is the rule. This latter observation also applies to the Merangee case. There a complete break in the possession of the family had lasted from 1760 till 1795, when Gangaray, a member of the older branch of the family, was put in possession. Beyond that fact there was nothing on which to found the conclusion that the Government had in view the creation of an impartible Zemindari (Jagannatha v. Ramabhadra I.L.R. 11 M. 385 Sri Raja Satrucharla Jagannadha Razu v. 8ri Raja Satrucharla Ramabhadra Razu I.L.R. 14 M. 244. And there was evidence relating to what happened in 1835 which, in the opinion of the Committee, clearly negatived any such intention. Much the same arguments seem to have been used in the Ramnad case as were used before us. There also Mangaleswari, in whose favour a formal declaration was made in 1795, was not put in possession for some years and then only when she had executed a muchilika. There was not even any evidence that the Company had paid her the net profits of the estate for the period during which it continued in their management. Mr. Justice Muttusami Aiyar considered that these circumstances did not servo to show that the quality of impartibility was intended to be affected. There was in that case a change of tenant and the military character of the tenure was of course abolished ; there was also from the first an intention to fix a permanent peishcush. But Mangaleswari was recognized as successor to the palayaput and no new estate was granted. Mr. Justice Muttusami Aiyar's observations hold equally good as applied to the present case--though no doubt there were other circumstances in the Ramnad rase on which the judgment was rested.
19. Taking all the evidence together up to the date of the issue of the sannad, we are unable to agree with the conclusion at which the District Judge arrived. Nor can we accede to the contention that the case must be treated on the footing that the Palayam was wholly lost to the Poligar's family before 1801 and that accordingly an entirely now grant was made in 1802. There is no evidence of any definite confiscation of the estate by the Nawab, and the conduct of the Company before 1801 shows that, so far from holding that a confiscation had taken place, they did their best to give effect to the Poligar's claims. In February 1802 the resolution of Government is explicit--the late Poligar is to be succeeded in the palayam by his brother--and from that time the latter received what was supposed to be the net income of the estate with arrears 'from the day the Carnatic was coded to the Company.' There was, in effect, a restoration of the estate, and unless it can be said that that act was cancelled by the subsequent proceedings of Government and a forfeiture was suffered, we fail to understand how the villages ultimately included in the sannad can be said to have been granted as a mere matter of grace in 1817. We have already given our reasons for holding that the change of mind on the part of Government did not go the length of amounting to a cancellation of their resolution of February 1802 or to a confiscation of the estate. In our opinion the question of impartiblity must be decided in no other way than it would have had to be decided if a sannad had been granted on the ordinary terms in 1802. Regarding the question in that way considering the evidence as to enjoyment of the old palayam, and the evidence as to what has occurred with regard to the enjoyment of the Zemindari since 1817, we think it is sufficiently proved that as the old palayam was impartible, so it was intended that the Zemindari should be impartible.
20. The plaintiff, however, contends that even if the Zemindari is impartible he is entitled to succeed Kalyana Rangappa, the fourth Zemindar, who died in 1885, in preference to the 1st defendant who, in fact, succeeded him. The relationship of the parties is shown below.
Istimirar Zemindar.|____________________________________________| | |1st wife (no issue). 2nd wife. 3rd wife.|Vijia Rangappadied 1883.|______________________| | |Periasami Plaintiff 2nd Deft.died April 1897.|______________________________| |Kalyana Rangappa, Prasanna4th Zemindar, Rangappadied 1885. died 1868.|Muthu Vijaya died 1878.|1st defendant.
21. The plaintiff's contention is that he, being a son of the fourth Zemindar's brother, is, notwithstanding that he is a brother of the half blood, in a nearer class of heirs than the 1st defendant, who is a grandson of the fourth Zemindar's uterine brother ; and that being in the nearer class he is to be preferred to the 1st defendant who is in a more remote class.
22. In support of this contention he relies on the decision of the Privy Council in the Tipperah case 12 M.I.A. 523 and on the decision of this Court in Subramanya Pandia v. Sivasubramania I.L.R. 17 M. 316. The short answer to this contention is that the Tipperah case, as has been already pointed out by this Court I.L.R. 17 M. 330 was decided with reference to the law of the Daya Bhaga which does not recognise survivorship as determining the devolution of property, and is thus not applicable to this Presidency where the law of survivorship, as recognized by the Mitakshara, prevails, and is a determining factor in tracing the descent of impartible property in an undivided Hindu family. This was expressly laid down by Turner, C.J., and Sir Muttusami Aiyar, J., in the case of Naruganti v. Venkatachalapati I.L.R. 4 M. 250 where they relied on an earlier decision of this Court in Ramayya v. Ranganayakamma (unreported) and on certain observations of the Privy Council in the ease of Katama Nachiar v. Rajah of Sivaganga 9. M.I.A. 593. In the case of Naraganti v. Venkatachalapati the competition was between a junior uncle of the last Zemindar and a grandson of a senior uncle, and the latter was held to have the superior right. The Court laid down this broad rule, 'When impartible property passes by survivorship from one line to another it devolves not necessarily on the co-parcener nearest in blood but on the nearest co-parcener of the senior lino' (p. 267).
23. Applying this rule to the present case, it is clear that the 1st defendant is the nearest co-parcener of the senior line and therefore takes in preference to the plaintiff who belongs to the junior line. The plaintiff contends that a different principle was laid down by this Court in 8ubramanya Pandya v. Sivasubramanya I.L.R. 17 M. 325 but it may be doubted whether under the principles there laid down the plaintiff would have a preferable title to the 1st defendant for, in an undivided family like the present, nearness of blood is immaterial. The principle of representation places the 1st defendant and the plaintiff in the position respectively of their grandfather and father and therefore equally near to the deceased Zemindar (apart from any question of the half-blood), and that being so, the 1st defendant being senior in age to the plaintiff, would take the impartible property in preference to the plaintiff. However that may be, this Court in deciding the case of Subramania Pandaya I.L.R. 17 M. 316 did not overrule or dissent from the decision in Naraganti v. Venkatachalapati and we think that we are bound by the latter decision which is in accordance with a still earlier decision of this Court.
24. We hold therefore that the 1st defendant is entitled to succeed to the impartible estate in preference to the plaintiff.
25. The plaintiff, however, contends that certain portions of the property claimed in the plaint are not included in the impartible estate, but are partible property to a portion of which he is entitled notwithstanding our decision in regard to the impartible estate.
26. With regard to the lands in Schedule A attached to the plaint, the District Judge has found that they all form part of the Zemindari, except the two villages (item 28) of Mavatiruppu and Vandayiruppu. These were originally acquired by the Istimirar Zemindar and the District Judge finds that two-thirds of these passed from Zemindar to Zemindar, and one-third was sold by order of the court and passed from the family for a time, but was re-purchased by the 4th Zemindar in 1878. In all cases the purchases were presumably made from the Zemindari 'funds. The District Judge thinks that the one-third re-purchased by the 4th Zemindar was intended to be incorporated with the two-thirds which had passed from Zemindar to Zemindar, and he is of opinion that these two-thirds should be held to be partible property because the 4th Zemindar in his suit to recover one-third from the purchaser in the court sale treated the property as partible. We do not, however, think that this is a correct view. The Zemindar first claimed the property as part of his Zemindari and it was only when this claim was disallowed that he tried the other plea and treated them as partible. The original plea of the Zemindar is certainly as likely as is the later plea to be correct. The onus lies on the plaintiff to show that the property is partible. This we think he has failed to do. The manner in which the property was acquired and passed from Zemindar to Zemindar, leads us to the conclusion that it, as well as the other property in Schedule A, are all part of the Zemindari and passed with it to the 1st defendant.
27. Having found that the Zemindari is impartible, and that there is no partible property, it is unnecessary to decide the questions--which are, in the main, questions of law--which would arise if the estate were partible.
28. In view, however, of the possible result of an appeal to the Privy Council, and with a view to prevent possible future litigation, we think it is necessary to record our finding as to the validity of the will of the late Zemindar. On that issue the District Judge has unfortunately omitted to record a definite finding. The Judge finds that 'the Zemindar knew what was in the draft and fair copy and approved them, though he was not the first to originate the idea of disposing of the property in the way he has dealt with it;' that on the 20th June he must have had sufficient consciousness to know what he was doing and did know that he was signing a will. He rejects the evidence of Bhujanga Row in so far as it states that the fair copy was not finished till the morning of the 20th. He believes the Deputy Collector's evidence and does not say he disbelieves Rangasami Aiyangar though he considers him not a very trustworthy witness. It is somewhat difficult to understand what doubt was left in the mind of the Judge, since it was not alleged and certainly not proved that the execution of the will, of which the testator is found to have known the contents, was obtained by undue influence. It need hardly be said that it is quite immaterial that the Zemindar acted upon suggestions made to him by his friends and relations in framing the will, provided that he knew what he was doing and was not subjected to any improper influence. Apparently the Judge's suspicions were aroused by the language used by the Deputy Collector and the witness Rangasami in their two letters K and M. It is suggested that Rangasami, while on the 16th writing to the Deputy Collector about some rumoured plot to get a will executed, was afterwards gained over by the plotters and induced to assist in obtaining the execution of the will signed on the 20th. There is ,no evidence to support this suggestion ; and it is quite inconsistent with the conduct of the witness Rangasami taking the will to the Deputy Collector for his criticism. If Rangasami is to be believed as to what took place in the Zemindar's presence and elsewhere on the 18th and 19th June, it is perfectly clear that the will was approved by the Zemindar. Indeed, the Judge finds that to be the case, but he does not observe how Rangasami is corroborated by the Deputy Collector. We accept the evidence of Rungasami as to those events. It is not suggested that there is any thing in the dispositions of the will to justify suspicion. On the whole we are of opinion that the issue as to the will must be found in the 1st defendant's favour.
29. The plaintiff can have no claim to the property acquired by the 4th Zemindar. It was disposed of by will, and that will we have found to be valid.
30. Lastly, the plaintiff claims that if the estate is impartible and if 1st defendant is entitled to hold it, he (the plaintiff) ought to get an allowance for maintenance of Rs. 2.000 per mensem and Rs. 10,000 for marriage expenses. No argument was addressed to us with regard to the claim for marriage expenses. The District Judge considered the claim for maintenance was exorbitant and allowed the plaintiff Rs. 250 per mensem, that being one-third of the sum allowed for the plaintiff and his two brothers under the compromise in O.S. 22 of 1886. The 1st, defendant objects to this sum as excessive. Ho wishes it to be reduced to Rs. 150, but we think that it is a reasonable sum to allow for the reasons stated by the District Judge in paragraph 74 of his judgment.
31. The result of these findings is that the appeals arc all allowed and the suit is dismissed, except so far as regards maintenance payable to the plaintiff by the 1st defendant. Plaintiff will have a decree for this maintenance charged on the property in Schedule AI including arrears from the date of the plaint payable according to the dates in Exhibit 82 (E). Plaintiff must pay all the costs of the litigation, except on the amount of maintenance recovered by him in Appeal No. 114 of 1889. He is entitled to costs on this amount from the 1st defendant Subject to the above exception all the appeals are allowed with costs.
32. These appeals having been posted again on Thursday, the 2nd day of May 1901, for being spoken to, the Court delivered the following further
33. The plaintiffs Memorandum of Objections is dismissed. Include as costs payable by the plaintiff the costs on Rs. 6,180-11-3, being the costs incident to the first and second grounds of the Memorandum of Objections.
34. The Advocate-General, on behalf of the 2nd defendant, asks to have included in the decree a provision for, the maintenance of his client.
35. Such provision can no doubt be made in a decree for partition, but in the present case the plaintiff has failed in his claim to recover the whole Zamindari as against the 1st defendant, and the case is not one in which a decree in favor of one defendant can be made against another. Of course the 2nd defendant is not precluded from making any claim for maintenance which he may have