1. In this case the plaintiffs sued to recover possession of certain moveable property which was in the possession of Venkata Chinnaya Rao at the time of her death in 1902 and also of a house built by her and of the Darmakartaship of a certain temple which was under her management at the time of her death, and which then passed into the possession of her husband who is the defendant. The Subordinate Judge dismissed the suit as regards themoveable property, which he held was Chinnaya Rao's absolute property, and which, therefore, passed to her husband on her death. The other property he decreed to the plaintiffs. Against that decree the defendant appeals. The plaintiffs filed a memorandum of objections as regards the moveable property, but it was not moved before us.
2. The relationship of the parties and of various members of the family is shewn below:
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Venkatapathi Rao Ramachendra Rao Sayamma Rao
(died 23rd July Jupalle Venkata-
1849) raghava Rao.
Jagannatha Laksh- Venkatagopala Venkata Gopala
ma Rao (died Narasimha Rao Narasimha
31st July 1859) (died 1887.) Rao is alleged
(married) Lakshmi | to have been
Venkamma Rao adopted in 1831.
(died May 1893.) ____________________________
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1st plain- 2nd plain- 3rd plain-
tiff, tiff. tiff.
(Their daughter is)
Rao (died 12th March
1902) married Sri Rajah
Appa Rao (Defendant--
Venkata Sobhannachala Raghunatha Appa Rao
Jagannatha Lakshmi (died 3rd June 1893.)
Royappa Rao (died 18th
3. Jaganatha Lakshma Rao and his brother Venkatagopala, Narasimha Rao, who is the father of the plaintiffs, lived as joint members of a Hindu family under the Mitakshara law until 1855 when they divided all their property. Jagannatha under the partition obtained 1 and 1/4 share of the Mailavaram estate and also the Dharmakartaship of the Dwaraka Tirumala Temple which is in dispute. In 1859 he made a will in which inter alia he directed that his wife should 'conduct the Darmakartaship' of the temple. He died in the same year, and as he had no sons, his property passed to his widow Venkamma Rao. In 1877 she executed a deed of gift in favour of her only child, Venkata Chinnaya Rao, the wife of the defendant, whereby she gave her at once the 1 and 1/4 share in the Mailavaram estate and also the Dharmakartaship of the temple, but retained one village of the estate for her own maintenance and also the house in which she lived and gave these to her daughter after her death. She died in 1893 and her daughter Chinnaya Rao died in 1902. It will be observed from the genealogical tree that Chinnaya Rao had two sons, but both of them died many years before her. On her death her husband, the present defendant, took possession of the Dharmakartaship and of the house with, its site and grounds. The present plantiffs, it will be observed from the family tree, are the sons of Venkatagopala Narasimha Rao, the brother who divided from Jaganatha Lakshma Rao in 1855. They got possession of the 1 and 1/4 share of the Mailavaram estate on the death of Chinnaya Rao and the defendant's suit to recover it founded on Jagannatha's will of 1859 has been dismissed by our judgment in Appeal No. 98 of 1904 delivered to-day. The present suit is brought by the plaintiffs as reversioners of Jagannatha Lakshma Rao to recover the house above referred to and the Dharmakartaship.
4. For the reasons stated in our judgment in Appeal No. 98 of 1904 the defendant cannot resist the plaintiffs' claim by virtue of any title conferred by the will, but he also resists on other grounds. One of these is that Venkatagopal Narasimha Rao, the father of the plaintiffs, had been adopted in 1831 by Jupalle Venkataraghava Rao who was married to Sayamma Rao, the sister of Venkatapathi Rao who was the father of Jagannatha Lakshma Rao and of the plaintiff's father, and that the plaintiff had thus passed into another family and could only claim as bandhus through their grandmother, Sayamma, and that Chinnaya Rao had daughters living who are reversioners nearer in degree than the plaintiffs and who therefore take the property in preference to them. We do not think that the question of the adoption affects the plaintiffs' rights to the property in dispute. If the property is property that will pass to the reversioners of Jagannatha Rao, in other words, if the property was not the stridhanam or absolute property of Chinnayya Rao, then the plaintiffs being male or 'regular' bandhus are entitled to it by virtue of their sex in preference to any female reversioners even though the latter may be nearer in degree and the plaintiffs are bandhus even if their father was adopted. In that case they are bandhus as the sons of the (adopted) son of the sister of the father of the deceased Jaganatha Lakshma Rao. This has long been the settled law in this Presidency (see Mayne's Hindu Law, para 593, 7th edition, and the cases there quoted by him). The question then is, whether the property was the stridhanam or absolute property of Chinayya Rao. The defendant claims the house as such because it was built by Chinnaya Rao out of the income of the Mailavaram estate, and there is no question but that the income belonged absolutely to Chinnaya Rao whether she was the full owner of the estate or had only a woman's limited estate therein. The plaintiffs claim the house as an accretion or addition to the Mailavaram estate. We think that the Subordinate Judge was right in finding the plaintiffs' claim proved. It is highly significant of Chinnaya's intention that this house should be a palace, or residence for the Zamindar (i.e., for herself during her life and thereafter for her son who was then alive) that she intended to build it on the home farm (kamatam) land of the estate and did actually spend Rs. 1,000 on the construction of a large house on this site, but abandoned it as she considered the death of her son which took place at this time was an evil omen. She, however, considered that her dignity as Zemindarni of the larger part of the estate required her to have a suitable palace; and the more so as the plaintiffs, who owned the smaller part of the estate, had built themselves a fine upstair house. She therefore spent no less than Rs. 40,000 on her palace, and we find that the site and grounds were largely land which undoubtedly belonged to the estate. Part of this land, we find from the evidence of the Peshkar, belonged to Jaganhatha himself, part was acquired by Veukamma in exchange for an abandoned site which belonged to the estate, and parts were lands relinquished to Venkamma and Chinnaya as owners of the estate. In the deed of gift in 1877, already referred to, Venkamma left to Chinnaya after her death, 'the vacant site and houses in Mailavaram' and directed that they shall vest in Chinnayya 'along with the estate,' i.e., as part and parcel of the estate. This shows plainly that this part of the site of the buildings in dispute belonged to the estate and was not part of the private property of Chinnaya. Lastly, the pay lists of the coolies employed (Exhibit S series) in building the palace show that they were 'doing the work of constructing the upstairs of the palace appertaining to the 1 and 1/4 estate of Mailavaram.' We think it is clear from all the evidence that the buildings in dispute were constructed as a palace or residence for the Zamindar for the time being and were intended to go with the estate as part of it, and not to be kept as the private property of Chinnaya's heirs if they should be dissociated from the estate. Moreover, the buildings being, in large part, on land belonging to the estate, would go with the estate apart from any intention of Chinnaya to treat them as part of the estate.
5. We think, however, the intention is sufficiently clear and the very character of the buildings indicates that the intention was as we have said. That being so, though the fund out of which the buildings were constructed, was the absolute property of Chinnaya, yet the buildings must devolve as part of the estate in accordance with the intention of Chinnaya to treat them as such Subrahmaniam Chetty v. Arunachellam Chetty I.L.R. (1904) M. 1 and Akkamma v. Venkayya I.L.R. (1901) M. 351.
6. With regard to the Dharmakarthaship it is necessary to see what is its history. It was originally not a part of the Mailavaram estate, but was part of the Chintalapudi estate. In 1823 the Chiutalapudi estate was mortgaged with possession to Venkatapati Rao (the father of Jagannatha Lakshma Rao) and he took possession of the Dharmakartaship at the same time and held it till his death in 1849. It then passed to Jagannatha and his brother (the father of the plaintiff) until they divided in 1855 when it was given to Jagannatha along with his 11/4 share, in the Mailavaram estate. This Dharmakartaship originally descended hereditarily when it appertained to Chintalapudi estate and in the deed of 1855 it is also expressly stated that it is to descend in the family of Jagannatha 'from generation to generation.'
7. In the will of 1859 Jagannatha directs that his wife Venkamma is to conduct the Dharmakartaship, and in 1877 Venkamma as already stated gave the possession of the estate and of the Dharmakartaship to Chinnaya Rao. It is evident that this property has always passed as an hereditary estate just as did Jagauatha's share of the Mailavaram Zetnindaiu, and it would therefore prima facie pass to the plaintiffs as the reversioners entitled to the hereditary property of Jagannatha Rao. But the defendant attempts to resist the claim by raising an ingenious plea founded on the law of limitation. As we understand the contention, it is that the transfer of the Dharmakartaship to Venkatapathi in 1823 was illegal as being against public policy and that possession of it was therefore that of a trespasser as was also the possession of Jagannatha, Venkamma and Chinnaya and consequently adverse to the plaintiffs, and that this adverse possession had given rise to an absolute title in Chinnaya Rao by virtue of Section 28 of the Limitation Act, and that the Dharmakartaship would therefore pass to her personal heirs instead of going to the plaintiffs as reversioners of Jagannatha Rao. The argument is, however, fallacious. Venkatapathi prescribed for only the same title as to Dharmakartaship as to the Chintalapudi Zemindari, i.e., for an hereditary though not absolute estate. In the deed of 1855 it is distinctly referred to by him as an hereditary estate. In his will he made no attempt to alter the course of succession. He gave his wife the Mailavaram estate because 'according to the law (Dharma Sastras) the kartaship (heirship) rests in my wife,'and he directed her to conduct the Dharmakartaship of the temple. His evident intention was that she should have what the law gave her - neither more nor less - that is a life estate in both the properties. So also Venkamma by her gift to Chinnaya in 1877 did not attempt to alter the succession. She gave her both the estate of Mailavaram and the Dharmakartaship 'as according to the Hindu Law you are the chief heir after us' to the property. Even therefore if the transfer of the trusteeship to Venkatapathy was invalid and even if Venkamma had no power to renounce the trusteeship in favor of Chinnaya it could make no difference in the quality of the interest taken by Venkamma and Chinnaya. Venkamma taking under the will (if it was genuine) could only have the interest which the testator gave her under the will, and Chinnaya taking under the gift could only have the interest which the gift gave her, that is, in both cases, a woman's limited estate under the Hindu Law. Neither Venkamma nor Chinnaya could claim by possession an interest in the property different from what they would have taken if the property had passed by the will or deed, and it is not open to the defendant claiming under them, to claim any higher estate, as observed by Lopes L.J. in Dalton v. Fitzgerald (1897) 2 Ch. 86: 'If a man obtains possession of land claiming under a deed or will, he cannot afterwards set up another title to the land against the will or deed though it did not operate to pass the land in question, and if he remain in possession till 12 years have elapsed and the title of the testator's heir is extinguished, he cannot claim by possession an interest in the property different from that which he would have taken if the property had passed, by the will or deed.'
8. We find, then, that there is no ground on which the defendant can resist the claim of the plaintiffs as reversioners, and we dismiss the appeal with costs.
9. The memorandum of objections is dismissed with costs.