1. This is an appeal under Section 51 Madras Estates (Abolition & Conversion into Ryot-wari) Act (Act 26 of 1948) (hereinafter called the "Act",) against the decision of the Tribunal to this Bench, which was constituted a Special Tribunal by the Hon'ble the Chief Justice under the said section.
2. Under Section 42 of the said Act, appellant 1 made an application to the Tribunal to direct payment of the entire sum of advance compensation deposited with the Tribunal in respect of the zamin estate of Sivagiri in Tinnevelly district. The zamin-dari of Sivagiri was taken over by the Government under the Act and a sum of Rs. 2,40,000 was deposited with the Tribunal as advance compensation. The father of appellant 1 Varaguna Rama pandia Chinnathambiar was the holder of the zamindari, which is an ancient impartible estate, included in the schedule to the Madras Impartible Estates Act (Act 2 of 1904). The management of the estate however was taken over in 1941 by the Court of Wards, at the request of the zamindar under the Madras Court of Wards Act (Act 1 of 1902) --vide Section 18. Appellant 1 is the eldest son of the zamindar. Respondent 1 In the appeal is the zamindar, who is a ward of the court of Wards and respondent 2 is his second son. On 5-2-1945, the zamindar executed a document, which is styled "relinquishment deed", Ex. A. 1, in favour of appellant 1, the eldest son and respondent 2, the second son represented by his guardian the eldest son.
Under this deed, the zamindar purported to relinquish the said zamindari including the properties described in the schedule attached to the deed in favour of the two sons in consideration of : (1) a sum of Rs. 11,000 paid already to the father; (2) Rs. 4000 and Rs. 10,000 respectively to be paid to him and his second Rani as per the promissory notes executed by the eldest son on the same date 5-2-45; (3) a promise to pay an allowance of Rs. 300 per mensem to the zamindar and Rs. 450 per mensem to the second Rani for the first five years to commence from the date on which the estate is handed over by the Court of Wards; (4) an increased allowance of Rs. 700 per mensem for the second Rani after the first five years; (5) a right of residence in one of the palaces at Sivagiri for the zamindar and his second Rani and her sons and other members of the family with a right to ingress into and egress out of the residence; (6) other rights granted under the covenants made by the memorandum of agreement of 5-2-1045. The capitalised value of the maintenance and the lump sum payments made or agreed to be paid was over Rs. 1,70,000.
The operative part of the deed is : "I do hereby relinquish, renounce and surrender the impartible zamindari of Sivagiri including the properties described in the schedule below and my right in and to the same in favour of you the remaining members of the coparcenary. I do hereby declare that as the result in law of my such relinquishment, renunciation and surrender, No. 1 among you becomes presently the holder and proprietor of the said impartible zamindari of Sivagiri, the right of succession of No. 1 among you to such a state being accelerated by virtue hereof so as to come into effect on the execution of this deed of relinquishment. I dp hereby declare that I have no further right in or to the said impartible zamindari of Sivagiri except the sums of money, palace rights, monthly allowances and special allowances for festival and all ceremonies granted to me, my second Rani, her heirs and provided for herein above and by the memorandum of agreement of even date as aforesaid. I do hereby declare that No. ,1 among you is at liberty to recover possession and management of the estate from the Court of Wards. I do hereby further declare that No. 1 among you shall by virtue hereof be the hereditary trustee of all devastha-nam chatram and other religious and charitable institutions within the zamindari of which the -zamindar of Sivagiri for the time being is the hereditary trustee".
3. The memorandum of agreement referred to herein however was not filed. After this deed, the zamindar and his son made an application to the Court of Wards to release the estate from its management and to hand it over to the eldest son. This request was rejected by the Court of Wards by its order (Ex. B-1) dated 11-7-1945 as the relinquishment deed by the zamindar was void under Section 34, Court of Wards Act and was, therefore, inoperative to pass any title to the zamindari to the eldest son. There was an appeal to the Government against the decision of the Court of Wards but that appeal also was unsuccessful -- vide proceedings of the Government (Ex. E-3) dated 27-2-1946.
4. The claim by the eldest son before the Tribunal was that by virtue of the relinquishment deed, he was entitled to the advance compensation deposited by the Government with the Tribunal as he became the owner of the impartible estate. The claim was rejected by the Tribunal on the ground that the deed was ineffective to vest any title in appellant 1 and that it was also hit at by Section 34, Court of Wards Act as it virtually amounted to a transfer of the estate by the father to the son. It is against this decision that this appeal was preferred.
5. The learned counsel for appellant l raised three points in the appeal, firstly, that under the document the zamindar renounced the estate in favour of his son and it was therefore effective to make him the owner of the impartible estate on the analogy of renunciation of the interest of a coparcener in favour of other coparceners in the case of partible joint family property and secondly on the analogy of the surrender under Hindu law of the estate by a limited owner to the nearest reversioner. It was maintained that the document operated as a self-effacement of the interest of the father in the property so as to let in the next heir entitled to succeed to the impartible estate on the principle of survivorship as the property is ancestral Joint family property. Lastly it was contended that the notification by the Court of Wards was without jurisdiction as the very foundation for the exercise of that jurisdiction under Sections 18 and 19 of the Act was a declaration under Section 17 that all the coparceners were previously declared to be disqualified under Section 9 and as this was not done, the notification is void.
6. It is admitted that there were other sons of the zamindar, who were not parties to the deed of relinquishment. The last argument based on Section 17, Court of Wards Act need not detain us longer as the question was never raised before the Tribunal and it is too late for appellant 1 to raise it now. The argument assumes that all the sons of the zamindar were holding the impartible estate as coparceners. This argument is also the basis for the first of the three above contentions and, as will be shown later, there is no basis for the assumption that the impartible estate is held in coparcenary by all the persons constituting members of the joint family. This objection must, therefore, be overruled.
7. The point most strongly pressed and strenuously argued on behalf of appellant 1 was the first of the above three contentions. The basis for the argument is that a junior member of an ancient joint family impartible estate has a present subsisting interest in the property practically as a coparcener and the effect of renunciation or relinquishment is only to enlarge that right and to reduce it to possession. The learned counsel for appellant 1 is driven to adopt this position, as the very foundation on which the doctrine of renunciation is rested in the case of partible property is that every coparcener is the owner of the entire family property and has joint possession and the effect of renunciation by one coparcener of his interest in the property is merely to extinguish his right and to reduce the number of shares in the property, thus enlarging the right of the other coparceners. It is an established principle that renunciation to be effective must be in favour of all the remaining coparceners and even if renunciation is in favour of one, it will enure to the benefit of all the remaining coparceners. This principle of renunciation follows, in my opinion, from the conception of the holding of joint family property by coparceners under Mitakshara. law. The very definition of 'vibhaga' or partition in Mitakshara Chapter I Section 1. PI. 4 brings out clearly the fact that there is a common ownership of all the persons of the joint family property and the effect of the partition was only to particularise the right to specific portions of the aggregate of the property so as to create individual ownership. A partition is the "adjustment of the ownership of many persons in the aggregate wealth by assigning particular portions of the aggregate to a several ownership." "Anekhaswamvam" is the ownership of many persons of the Dravyasamudayavishaya, i.e., the aggregate wealth, which implies that each is the owner of the whole Until there was a 'vibhaga' or partition by restricting his right to a particular portion of the property to be held by him in his individual right.
Partition in a sense, therefore, is a restriction of the right of an individual to a specified portion of the property and an exclusion of the rights of the other coparceners in that portion which was allotted to a coparcener. So long therefore as common ownership continues accompanied, by joint possession, when one member walks out of the property renouncing or relinquishing his interest, the only effect is to reduce the number of coparceners entitled to share in the properly and increase the quantum of the right of the other coparceners, in law therefore, renunciation of relinquishment in such a case does not operate to transfer any right by one coparcener to the other or others but is merely an extinguishment of his interest. The other coparceners dp not by mis process acquire a new title by virtue of a transfer. They were the owners of the whole property and continue to be the owners notwithstanding one member went out of the coparcenary relinquishing his rights in the property. This aspect was considered by the Judicial Committee in -- 'Altai Venkatapathiraju v. Venkatanarasimharaju', AIR 1936 PC 284 (A), in the passage, which occurs at page 267 :
"It is a settled rule that when the members of a family hold the family estate in defined shares, they cannot be held to be joint in estate. But no definement of shares need take place when the separating member does not receive any share in the estate but renounces his interest thereto. His renunciation merely extinguishes his interest in the estate,. but does not affect the status of the remaining members 'quo ad' the family property and they continue to be coparceners as before. The only effect of renunciation is to reduce the number of the persons to whom shares would be allotted if and when a division of the estate takes place."
It is necessary to bear in mind these elements of the doctrine of renunciation or relinquishment applicable to the case of partible property in examining the soundness of the contention urged on behalf of appellant 1. It is no doubt true that in the case of ancestral joint family impartible estates, the devolution of the property after the death of the holder for the time being is not according to the rule of succession applicable to separate or self-acquired property governed by Mitakshara law but it is the rule of devolution applicable to joint family property, i.e., the principle of survivorship which of course is modified by custom to the extent that the seniormost member of the family takes it by survivorship to the exclusion of others. For the purpose of ascertaining the heir. the property is treated as joint family property and so long as the family continues joint, the next heir has to be determined by the rule of survivorship and not succession. It is open to establish that the family ceased to be Joint family for the purpose of succession by establishing an intention express or implied on the part of the junior members of the family to give up their chance of succeeding to the estate and this Is practically the only mode by which an impartible estate ceases to be joint family property. It has been recognised that the right to take the property by survivorship is not like the right of a reversioner to succeed to the estate as 'spes successionis' but a present contingent right which could be renounced or surrendered but the right is only to take the estate after the death of the holder for the time being. The point is whether during the lifetime of the holder, a person entitled to take the estate by survivorship, an impartible estate being in the nature of joint family property, has any present Interest in the property itself in the same manner in which a coparcener has in the case of ordinary partible property.
8. The law relating to impartible estates had to undergo several vicissitudes and some of the ob serrations of the Judicial Committee in the leading decisions on the point may seem to be irreconcilable. But it may now be taken that the following principles were settled by decisions. Impartiality is essentially a creature of custom. The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth and therefore have no right of partition having regard to the very nature of the estate that it is impartible. Secondly, they have no right to interdict alienations by the head of the family either for necessity or otherwise. This, of course, is subject to Section 4, Madras Impartible Estates Act in the case of impartible estates governed by the said Act. The right of junior members of the family for maintenance is governed by custom and is not based upon any joint right or interest in the property as co-owners. This is now made clear by the privy council in -- 'Commr. of Income-tax, Punjab v. Krishna Kishore', AIR 1941 PC 120 CB) and -- 'Krishna Yachendra Bahadur Varu v. Raja Rajeswararao', AIR 1942 PC 3 (C). The income of the impartible estate is the individual income of the holder of the estate and is not the income of the Joint family. Vide -- 'AIR 1941 PC 120 (B)'. To this extent, the general law of Mitakshara applicable to joint family property has been modified by custom and an impartible estate, though it may be an ancestral joint family estate, is clothed with the incidents of self-acquired and separate property to that extent.
The only vestige of the incidents of joint family property, which still sticks on to the joint family impartible estate is the right of survivorship which, of course, is not inconsistent with the custom of impartibility. For the purpose of devolution of the property, the property is assumed to be joint family property and the only right which a member of the joint family acquires by birth is to take the property by survivorship but he does not acquire any interest in the property itself. The right to take by survivorship continues only so long as the joint family does not cease to exist and the only manner by which this right of survivorship could be put sn end to is by establishing that the estate ceased to be joint family property for the purpose of succession by proving an intention, express or implied, on behalf of the junior members of the family to renounce or surrender the right to succeed to the estate. That the property is not held to coparcenary was clearly enunciated by the Judicial Committee by Sir George Rankin himself in the latest case in -- 'Ananth Bhikappa v. Shankar Kamachandra', AIR 1943 PC 198 at p. 201 CD), in these terms :
"Now an impartible estate is not held in coparcenary -- 'Rani Sartaj Kuari v. DeoraJ Kuari', 10 AH 272 (PC) (E), though it may be joint family property, it may devolve as joint family pro-perty or as separate property of the last male owner. In the former case, it goes by survivorship to that individual, among those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom, e.g., lineal male primogeniture. In the latter case jointness and survivorship are not as such in point; the estate devolves by inheritance from the last male owner in the order prescribed by the special custom or according to the ordinary law of inheritance as modified by custom."
See also the decision of the learned Chief Justice find Venkatarama Ayyar J. in -- 'Rangarao v. State of Madras', (P).
9. The learned advocate for appellant l relied strongly upon the observations of Sir George Ran-kin in -- 'AIR 1941 PC 120 at p. 127 (B), where the learned Judge refers to unity of ownership, for he says;
. "Unity of ownership, unaccompanied by joint possession on the part of the sons, or any other right of possession would not seem to affect the character in which the income is received. Income is not jointly enjoyed by the party entitled, to maintenance and the party chargeable; and their Lordships see no reason to restrict the observations which they have cited from the judgment in -- 'Jagadamba Ku'mari v. Wazir Narairt Singh', AIR 1923 PC 59 (G), to the special class of cases where no maintenance is payable to any junior member. It cannot in their view be held that the respective chances of each son to succeed by survivorship make them all co-owners of the income with their father, or make the-bolder of the estate a manager on behalf of himself and them, or on behalf of a Hindu family of which he and they are some of the male members."
10. In view of the observations in the later Bombay ease by the same learned Judge Sir George Rankin, it cannot be held that by unity of ownership, the learned Judge intended to convey that all junior members are coparceners of the property which would be contrary to all the decisions of the Judicial Committee, which recognised no interest in the property in the junior members and. for that reason they had no right to partition, no right to interdict an alienation and no right to claim maintenance. All that the learned Judge must have meant was that the property continues to be joint family property in the sense that the joint family is taken as one unit when the question of the heir fails to be determined from among its members and the person entitled to succeed to the estate is selected on the principle of survivorship. The discussion by the learned Judge in the earlier portion of the judgment seems to indicate that the learned Judge did not mean by the expression "unity of ownership" to convey that the junior members had any present title to or interest in the property, the only right being to take the estate by survivorship, if the person survives the death of the holder for the time being. It would revolutionise the law relating to impartible estate as developed by the decisions of the Judicial committee and put the clock back if junior members are considered as having a present interest in the estate. No useful purpose would be served by examining all the decisions in detail in view of the clear and unambiguous pronouncement of the Judicial Committee in the Bombay case where it is stated that the junior members are not coparceners.
11. If therefore appellant 1 had no title to the property at the time of the renunciation except the off-chance of succeeding by survivorship to the estate after the death of his father, the renunciation or relinquishment under the deed would not clothe him with any title to the property. Renunciation must be in favour of a person, who had already title to the estate the effect of which is only to enlarge the right. Renunciation does not vest in a person a title where it did not exist and therefore the deed would be inoperative to make appellant 1 the owner of the impartible estate of Sivagiri. Appellant 1's contention on the construction of the document is that it conveyed no present interest. Appellant 1's advocate is really on the horns of a dilemma. If the document did not convey any title to the property, he gets none as-renunciation is ineffective to confer any title upon appellant 1; if on the other hand the document conveys or transfers property, it will be hit at by Section 34, Court of Wards Act. The learned counsel for appellant 1, therefore did not contend that the document constitutes a deed of transfer though it was the view taken by the tribunal. It is unnecessary for us to express any opinion whether the document in fact conveys, any title to appellant 1 as appellant 1 did not contend before us that it did convey title to him. The first contention, therefore, of the learned counsel for appellant 1 cannot be accepted.
12. The second point viz., the application of the doctrine of surrender is, in my opinion, without any substance. The doctrine is peculiar to the limited owner taking an estate under Hindu law and has never been applied to a full owner. The doctrine proceeds on the basis that a limited owner, widow, daughter, or mother, brings about by surrender a civil death or self-effacement, the effect of which is to accelerate succession and to let in the next reversioner. In other words, it is as if the limited owner died on that date when the law steps in and vests the property in the next reversioner. Such a doctrine has no application to the case of a full owner of property who is himself the stock of descent for the devolution of the property. An impartible estate holder for the time being can clothe the next in succession with a right to the estate by a transfer or gift 'inter vivos' or even by a will. But in Madras in cases governed by the Madras Impartible Estates Act, the transfer is subject to the limitations imposed by Section 4 of the Act and no right to bequeath the property by will exists. The power of alienation is restricted and limited. The doctrine, therefore, of surrender cannot be applied to this case and no case has been cited before us relating to an impartible estate to which the doctrine has been applied. On the face of it, the doctrine, even if it is treated as a surrender, seems to me a clear device to divide the estate. It does not merely contain a provision for maintenance but there are also provisions for lump sum payments to the zamindar and his second Rani. The second contention also therefore fails.
13. We are, therefore, of opinion that the view taken by the Tribunal that appellant l did not become the owner of the impartible estate of Sivagiri and that he is not entitled to the payment of the advance compensation deposited by the Government with the Tribunal is correct and the decision must be affirmed.
14. The appeal is dismissed with costs which we fix at Rs. 750.