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V. Navaneetha Krishna thevar Vs. Ramasami Pandia Thalavar and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1917)33MLJ277
AppellantV. Navaneetha Krishna thevar
RespondentRamasami Pandia Thalavar and ors.
Cases Referred and Annapurni Nachiar v. Collector of Tinnevelly I.L.R.
- - , and so to enable it to realise the best price for the estate. no tenants were to be obtained, it was falling into decay, and the fact that a ruined zemindar had been allowed to live there by the late zemindar and had been buried in the compound was against its letting well. 4. the alienations complained of in schedules 1 to 4 were in respect of certain pannai lands in which there was admittedly no occupancy right. the other alienations complained of were made by the widow herself and are the subject of the three suits instituted in the district munsif's court of ambasamudram and transferred to the subordinate judge's court of tinnevelly and tried along with the other suits, and of separate appeals. the objection that the 1st defendant granted permanent leases is unsustainable, as.....wallis, c.j.1. appeal no. 380 of 1914 is an appeal from the judgment of the subordinate judge of tinnevelly in original suit no. 30 of 1911 a suit brought by eamasami pandia thalavar claiming to be the nearest reversioner of the last zamindar of uttumalai to declare that certain alienations made by the court of wards during their management of the estate on behalf of the widow of the late zamindar, eanee meenakshi sundara nachiar, now an incapacitated proprietor under madras act i of 1902, are not binding on the estate. under that act, as amended, suits by and against a ward are to be in the name of the ward but the conduct of the suit is with the manager appointed by the court of wards acting as guardian ad litem. defendants nos. 2 to 22 are alienees and persons claiming under them......

Wallis, C.J.

1. Appeal No. 380 of 1914 is an appeal from the judgment of the Subordinate Judge of Tinnevelly in Original Suit No. 30 of 1911 a suit brought by Eamasami Pandia Thalavar claiming to be the nearest reversioner of the last Zamindar of Uttumalai to declare that certain alienations made by the Court of Wards during their management of the estate on behalf of the widow of the late Zamindar, Eanee Meenakshi Sundara Nachiar, now an incapacitated proprietor under Madras Act I of 1902, are not binding on the estate. Under that Act, as amended, suits by and against a ward are to be in the name of the ward but the conduct of the suit is with the manager appointed by the Court of Wards acting as guardian ad litem. Defendants Nos. 2 to 22 are alienees and persons claiming under them. Defendant No. 23 denies the plaintiff's pedigree and claims to be the next reversioner, and has brought a similar suit (Original Suit No. 26 of 1912) to declare the alienations of the properties mentioned in schedules 5 and 6 of the plaint in Original Suit No. 30 of 1911 invalid. He was added as a party to this suit together with defendants Nos. 24 to 31 whoclaim to be remote reversioners and support him. The plaintiff has also brought other suits in the Court of the District Munsif of Ambasamudram (Original Suits Nos. 380 to 382 of 1909) to question an alleged alienation made by the 1st defendant whilst in management in 1901, and these suits have been transferred to the Subordinate Judge's Court of Tinnevelly and tried along with the principal suit (Original Suit No. 30 of 1911) and are now the subject of appeals before us (Appeals Nos. 346 to 351 of 1915). Though this and the connected suits have been brought for a declaration that certain alienations are not binding beyond the life of the 1st defendant, there can be little doubt that the main object of the plaintiffs in the suits was to assert their respective titles as next reversioners to the estate on the death of the 1st defendant. The relationship of the 23rd defendant is admitted, and though the Subordinate Judge found against his reversionary right, it is now admitted that his judgment on that point, cannot be supported. The relationship set up by the plaintiff in the present suit is strongly contested both by the Court of Wards on behalf of the 1st defendant and by the 23rd defendant, and was the main question fought in the Court below. The Subordinate Judge has found that the plaintiff's case is true and that he is the son of Gnanapurani Nachiar, the legitimate daughter of the Zamindar who died in 1850 and of his 2nd wife Gomathimuthu Nachiar who according to the plaintiff's case was the daughter of one Maruthappa Thevar and was married by the Zamindar Navaneetha Krishna Maruthappa Thevar as his 2nd wife between the years 1841 and 1845, and that Gnanapurani's mother was not, as contended by the defendants, a dancing girl named Kuppi who was living with the Zamindar as his concubine when she gave birth to Gnanapurani. He has also held the alienations questioned to be invalid and has given the plaintiff a declaration to that effect. His judgment on the latter point is supported by the 23rd and subsequent defendants but Mr. Nugent Grant instructed by the Manager for the Court of Wards who is the guardian ad litem of the 1st defendant has appealed against this part of the decision also, and contended that the alienations cannot be questioned, and that being so, that the suit should be dismissed without going into the claims of the rival reversioners.

2. The alienations questioned in the main suit were made by the Court of Wards whilst in superintendence of the estate purporting to act under the statutory powers given them by Section 35 of the Act. In 1899 the old Court of Wards Regulation V of 1802 was amended by the insertion of a general chapter intended to enable the Court to take encumbered estates under its management and clear them from encumbrances, and in 1902 the Eegulation was repealed by Madras Act 1 of 1902 which re-enacted the provisions of the Act of 1899 and introduced other changes. Section 35 of the Act is in the following terms: 'The Court may mortgage or sell the whole or any part of any property under its superintendence and may give leases or farms of the whole or any part of such property for such terms as it thinks fit, and may make remissions of rent or other dues, and may generally pass such orders and do such acts not inconsistent with the provisions of this or any other Act for the time being in force as it may judge to be for the advantage of the ward or for the benefit of the property.' The Subordinate Judge has held that this only enables the Court to sell or mortgage the particular interest of the ward in the property under superintendence unless there are circumstances which would justify the ward himself if sui juris in selling outright. Under the Act, the ward is not necessarily a full owner and may be, as here, a widow, or the owner of an impartible estate with limited powers of alienation under the Madras Impartible Estates Act, 1904, which continued in substance the provisions of the temporary Act passed at the same time as the Court of Wards Act in 1902, or the property may be owned as joint family property by several minors in which case the senior if of age would only have a limited right of sale. In comparatively few cases under superintendence in this Presidency would the ward if sui juris be full owner with power to sell outright. The power to sell, mortgage or lease is in terms absolute, and is not governed by the restriction in the later part of the section, as pointed out in Mohsan Shah v. Mahbub Ilahi 1; and to say that the Court cannot sell outright where the ward has only a life interest unless there are circumstances which would justify the ward himself in selling under the Hindu law is to import into the section the words which are not there and to hamper the Court in the exercise of powers which are conferred I.L.R. (1907) A. 589 upon it as incidental to its right of management for the benefit of the Estate, that is of the ward and those who come after him. The word property under its superintendence means, in my opinion, the moveable and immoveable property itself and not the particular interest of the ward as widow. Further, if the word property be construed as confined to the limited interest of the ward, it Will be necessary to look elsewhere for the Court's power to sell and mortgage outright in cases where the Hindu Law allows it. Powers of selling, mortgaging and leasing are often conferred on trustees and others as incidental to powers of management, the proceeds being held by them as part of the estate, and I see no reason why the section should not be construed as conferring such power upon the Court. To enable it to extricate encumbered estates from difficulties, the legislature in other sections has gone the length of enabling it to oust mortgagees in possession from management of the property under mortgage to them and take over the management. Sales or mortgages of life interests are always highly speculative and unsatisfactory transactions, and were not, in my opinion, the transactions which the section was enacted to validate. It seems to me that the Intention was to enable the Court of Wards to give a statutory title free from the risk of law suits by subsequent heirs etc., and so to enable it to realise the best price for the estate. The decision by their Lordships of the Judicial Committee in Muhammad Mumtaz Alikhan v. Farhat Alikhan I.L.R. (1901) A. 394, did not relate to a sale or mortgage but to a transaction which their Lordships held to be a voluntary alienation not warranted by the latter part of the section which was nearly in the same terms as the present section.

3. As regards the particular alienations in the plaintiff's schedule, that referred to in the sixth schedule was of one of two bungalows possessed by the estate at a watering place called Courtallum. No tenants were to be obtained, it was falling into decay, and the fact that a ruined Zemindar had been allowed to live there by the late Zemindar and had been buried in the compound was against its letting well. I think that the widow herself would have been justified in selling under these circumstances. The property comprised in the 6th schedule is only 1'7 acres. Both these sales were, in my opinion, within the powers of the Court.

4. The alienations complained of in schedules 1 to 4 were in respect of certain pannai lands in which there was admittedly no occupancy right. The tenants who held on leases for fixed terms set up that, in consideration of their having reclaimed the lands, the late Zamindar had promised to grant them permanent leases on favourable terms and that the promise had been confirmed by his widow in September 1891, whilst in charge of the estate on behalf of her minor son. The Court of Wards contested that claim but later on entered into compromises by which on payment of Rs. 160 per kotta of land the tenants were allowed permanent rights of occupancy at a fixed rent. The result was to settle the litigation and to raise money for the satisfaction of the debts incurred during the life of the late Zamindar. The Subordinate Judge is wrong in saying that such debts were binding only if incurred for necessary purposes. The Madras Impartible Estates Act, 1902, did not affect debts already incurred. The estate which has been included in the Impartible Estates Act was presumably impartible, and under the decisions of the Privy Council was alienable by the holder for the time being prior to the passing of the Act of 1902. Assuming that this transaction amounted to sale of the kudiwaram or occupancy right, I think the alienation was covered by the first part of Section 35, and that in any case it was covered by and was also within the powers conferred by the second part. As regards the rates reserved, it is not shown that they were inadequate, regard being had to the premium paid. The other alienations complained of were made by the widow herself and are the subject of the three suits instituted in the District Munsif's Court of Ambasamudram and transferred to the Subordinate Judge's Court of Tinnevelly and tried along with the other suits, and of separate appeals. The complaint is that the 1st defendant granted the tenants permanent leases and converted the waram rents into fixed money rents. The objection that the 1st defendant granted permanent leases is unsustainable, as it is well settled that even before the passing of the Madras Estates Land Act of 1908 there was a presumption in this Presidency that ordinary ryots, such as these, had permanent occupancy rights in the holdings, and it would have been hopeless to contest it. The conversion of rents payable in kind into money rents is, I think, within the powers of a limited owner, such as a widow. In a good year, rents payable in kind may produce more, but in a bad year they may bring in nothing; and as is well known by every one at all acquainted with the subject there are great difficulties in the way of the due realization of the land-holder's share under the waram system. These and other reasons have induced the legislature now to give either party a right to sue for a commutation of waram into money rents. In the present case, the Subordinate Judge has not found, and it is not shown, that the rate of commutation was unfair, and in these circumstances, I do not think, the plaintiff was justified in coming to court and asking for a declaration as to these items. It is therefore unnecessary to consider the other points raised by Mr. Nugent Grant in this connection.

5. The result is that the plaintiffs in these suits have not made out their right to declarations that any of the alienations complained of are not binding on the Estate. It is well settled by a long catena of cases ending with the recent decision of the Privy Council in Janaki Ammal v. Narayanasami Aiyar I.L.R. (1916) M. 684 : 31 M.L.J. 225, that the reversioners are not entitled to sue for a declaration that they are the next reversioners unless the decision of that question is incidental to the grant of some other relief to which they may be entitled. It follows that the only course open to us is to allow all the appeals, reverse the decrees of the lower court and dismiss the suits.

6. As however the case may not stop here, we think it right to allow the petitioners in Civil Miscellaneous Petitions Nos. 845 and 1655 of 1915 and 2996 of 1916 for the admission of certain documents rejected by the Subordinate Judge, namely, (1) the decree of the Zillah Court of Tinnevelly, dated 3lst May 1859 in Original Suit No. 4 of 1859, (2) the Takid of the Collector to the Muzumdar on the death of the Rajah in 1850, (3) the reply of the Muzumdar, and (4) the Collector's Takid in 1853 on the complaint of the Zemindar's widow as to the conduct of Maruthappa Thevar who according to the plaintiff's case was the father of Gnanapurani's mother. They will accordingly be marked as Exhibits XXXIV, XXXV, XXXVI and XXXVII respectively and incorporated in the record. The learned Advocate-General did not support the exclusion of the last three on the ground that the copies of correspondence kept in the Collector's and Taluk offices were not signed but contended that they were not admissible under Section 35 of the Indian Evidence Act. We think however that copies of actual letters made in registers of official correspondence kept for reference and record are admissible under Section 35 as reports and records of acts done by public officers in the course of their official duty and of statements made to them, and that in the words of their Lordships in Rajah Muttu Ramalinga Setupati v. Perianayagam Pillai they are entitled to great consideration in so far as they supply information of material facts and also in so far as they are relevant to the conduct and acts of the parties in relation to the proceedings of Government founded upon them. Treating this evidence as admissible, Mr. T.R. Ramachandra Aiyar addressed us a very powerful argument in support of the appeal of the 23rd defendant. Putting aside the direct evidence of the alleged marriage in the forties of the last century as interested and unreliable, he argued, in the first place, that there was no presumption in favour of Gnanapurani's mother having been a legitimate wife rather than a concubine. The Zemindar was an elderly man, had a wife living who had borne him issue and in whom he reposed great confidence and admittedly had one concubine already living in the palace. In these circumstances, he went so far as to contend that the presumption was even the other way. Coming then to the official records of the proceedings of the Court of Wards and its subordinates in the exercise of their official and statutory duties on the death of the Zamindar in 1850 leaving a minor heir, he relied very strongly on the facts that the Muzumdar had proceeded to the palace immediately and made inquiries and that the Collector had also had an interview with the minor heir and the agents of the late Zamindar, and that the Muzumdar had also paid a second visit and made certain further inquiries under the direction of the Collector, and that nothing was heard of the Zamindar having left any second wife, whereas one of the grounds given by the Muzumdar in his recommendation that the estate should be handed over to the widow was that she was the sole wife of the Zamindar, a statement which was further admissible under Section 32 of the Indian Evidence Act as made by a person having special means of knowledge. In any case, these proceedings, he contended were clear evidence that Gnanapurani's mother did not enjoy the status of a recognised wife at the death of the Zamindar, and he contended that evidence of subsequent treatment relied on by the other side might be explained by the admitted relationship and the Zamindar's affection for his paternal sister and was of no avail as evidence of habit and repute. He also drew our attention to the Collector's order in 1853 excluding Maruthappa who is now alleged to have been the second wife's father from the palace on the complaint of the Zamindar's widow that he was endeavouring to entrap the minor into a marriage with one of his girls, and to the absence of any reference to the relationship now set up such as we should expect to find if Gnanapurani's mother had really been his daughter and the junior widow of the late Zamindar. He also drew our attention to the pleadings of the same date in which the Zamindar's widow was referred to as the heir of the late Zamindar without any reference to a junior widow as evidence of general reputation. He relied further upon the fact that the mother and daughter did not reside in the palace itself but in a thatched outhouse known as the Thottikattu and on the fact that the name now claimed for her is nowhere to be found in the accounts or conveyances prior to the death of the Zamindar in 1891, whereas on the other hand she is referred to never in her own name but as the Thottikattu Nachiar or Thottikattu lady years after she had left the palace after her daughter's marriage and gone to live with her in the residence provided by the Zamindar at Uttumalai.,.

7. He also relied on the fact that when the Zamindar purchased a village for Gnanapurani in 1885, the sale deed in her name contains no reference to her relationship and does not even accord her the designation of Nachiar. On the other hand, the learned Advocate General on the other side has contended that the very fact that the other widow allowed Gnanapurani's mother to go on living in the palace after the Zemindar's death is strong evidence of habit and repute as, if she had not been his lawful wife, she would have been turned out with her child. There is in my opinion no ground for this suggestion, and I think he was on stronger ground when relying on the subsequent treatment of the daughter, her marriage to a junior member of the Kadambur Zamindar's family, the provision made for her and subsequently for her family who were married into respectable families, and above all, on the correspondence in which Gnanapurani was addressed by the Zemindar as 'sister,' and her mother was addressed as 'mother' and 'my own mother', and the Zemindar's wife referred to the present first defendant as your daughter-in-law. As regards Gnanapurani's marriage, Mr. T.R. Eamachandra Aiyar contended that her husband had been induced to marry her in consideration of the material advantages of the connection. He was unable to provide her with a home and he and his family lived in the Zemindar's palace at Uttumalai and in dependence on him. If Gnanapurani had been legitimate, the Zamindar would have found a husband in a position to take her to his own home and support her as happened in the case of the Zemindar's two sisters who died young without leaving issue. The illegitimacy would have been no obstacle to the marriage of her children into good families in this caste of Sudras as appeared from the case Pandaiya Telaver v. Puli Telaver (1868) 1 M.H.C.R. 478. He also commented on the fact that there had never been any separate provision made for the mother as the junior widow of the Zamindar, and went into the accounts with a view of showing that the treatment of Gnanapurani and her mother and family, and the provision made for the marriages in her family were not such as were to be excepted if the plaintiff's case was true. With regard to the provision made for Gnanapurani herself and her family, I may say that I was not satisfied that there was any inadequacy on which an inference against plaintiff could be based. As regards the fact that the Zamindar had addressed Gnanapurani as his sister and her husband as his brother-in-law, Mr. T.R. Ramachandra Aiyar contended that under the Hindu Law she was his sister, and that in addressing other relations, the Zamindar had ignored the bar of illegitimacy. His letters to the mother were more difficult to get over. And all that can be urged apparently is that they were all written in the closing years of the Zamindar's life when he had no near relations except Gnanapurani and her family and was disposed to treat her family in all respects as his own. Both parties referred to the oral evidence, but these were the considerations chiefly relied on. I express no opinion as to the proper conclusion to be drawn from them with the assistance of the oral evidence in so far as it may be considered reliable and of all the other evidence in the case; but in the circumstances I have thought it better to mention the Course of the argument before us, more especially as it proceeded upon some evidence which was excluded by the Subordinate Judge, and raised considerations very inadequately dealt with by him which will have to be taken into account in deciding whether the evidence on record of habit and repute taken as a whole justifies the presumption of a lawful marriage, if it be considered that the direct evidence of marriage cannot be acted upon.

8. The result will be that Mr. Nugent Grant's Appeals Nos. 428 of 1914 and 346 to 348 of 1915 will be allowed, the decrees appealed from will be reversed, and the suits dismissed with costs throughout of the 1st defendant to be paid by the 1st respondent. Appeal No. 425 of 1914 is also allowed with costs against the 1st respondent. In Mr. T.R. Ramachandra Aiyar's Appeals Nos. 380 of 1914 and 349 to 351 of 1915, we reverse the decrees, appealed from, and dismiss the suits with costs throughout of the 1st defendant to be paid by the plaintiff. His Appeal No. 381 of 1914 against the decree in Original Suit No. 26 of 1912 dismissing, his client's suit must be dismissed with costs of the 1st, 2nd and 3rd defendants (one set).

Burn, J.

9. I agree with the learned Chief Justice in holding that the decree from which Appeal No. 380 of 1914 is preferred should be reversed. There can be no doubt that the real object of the litigation is not the securing of a declaration with regard to the transactions of comparatively little importance which are being impugned but the determination of the question of who the nearest reversioner is with a view to claims to succession on the death of the Zemindarni.

10. As the suit is being dismissed on other grounds, it is unnecessary to record any finding on the merits of the claims put forward by the appellant and 1st respondent in Appeal No. 380 of 1914. As however the questions have been fully argued, it may be as well to indicate briefly the view I am inclined to take on some of the principal contentions which have been relied on in the course of the argument.

11. The last male holder was Navaneetha Krishna Maruthappa Thevar who died on 16th December 1891. The rival claimants are his maternal uncle Navaneetha Krishna Thevar (appellant in Appeal No. 380 of 1914) and Eamaswami Pandia Thalavar (1st respondent in Appeal No. 380 of 1914). The right of the former to be considered a reversioner was disputed and was found against in the lower Court but it is conceded that this finding cannot be supported. The latter claims descent from the grandfather of the last male holder as the son of his daughter by his second wife. If this claim be established, the 1st respondent's rights are admittedly superior to those of the appellant. The question at issue regarding his possession is now narrowed down to this. Whether his grandmother was the wife or the concubine of the Zamindar who died in 1850. If she was a wife, he is entitled to succeed. If she was a concubine, his claim fails.

12. The marriage is alleged to have taken place in or about the year 1845 and the production of reliable direct evidence is a matter of great difficulty. The previous litigation in which one of the questions in issue was whether the present Zemindarni was a wife or a concubine illustrates this point. (Exhibit MMMMM and Annapurni Nachiar v. Collector of Tinnevelly I.L.R. (1895) M. 277 : 5 M.L.J. 1 21. It also affords an instance of masses of unreliable oral evidence being produced by both parties. The oral evidence in the present case is, in my opinion, of very small value. I should not be prepared to act on the assertions of the witnesses for either party except where their testimony is corroborated by the documents on the record or by circumstances established independently

13. The Zamindar was about 50 years of age in 1845. It has been urged that it is highly improbable that a man of this age possessed of a wife, a legitimate son, and one concubine would have contracted another marriage. The parties are Maravars. It was open to the Zamindar to take to himself further wives or concubines. A fresh marriage might be unpopular in his own household, but I do not think any presumption can be raised as to how a particular individual would act under these circumstances.

14. The Subordinate Judge gives some credit to the statements of three out of the four witnesses who have deposed to their presence at the marriage. Plaintiff's witnesses Nos. 7 and 13 make absurd statements as to the year of the marriage and P. W. 14 is shown to be unreliable in another connection. No weight can be attached to this evidence. The case of the appellant is that 1st respondent's grand-mother was a dasi who had been duly initiated, and had followed her calling in the usual way for some years at least. The fact that the Zamindar was the father of her child was denied. The subsequent treatment of this daughter (Gnanapurani) and her descendants is inconsistent with any doubt as to the Zemindar having been her father. This contention has now been given up. The importance of establishing that Gnanapurani's mother was a dasi lies in this, that if the fact be proved she could not have been the lawful wife of the Zamindar. There is no documentary evidence such as temple registers to support the allegation. The first public suggestion that she was a dasi appears to have been made in 1892 and a motive for the accusation is shown to have existed. The oral evidence on the point has been examined in detail by the Subordinate Judge and has been rightly discredited by him. The witnesses are nearly all persons of no position whose statements are discrepant and in many particulars inconsistent with facts as ascertained from documents the authenticity of which is not in dispute.

15. The 1st respondent has sought to establish that his grandmother was Gomathimuthu, the youngest daughtor of Kaduvetti Maruthappa Thevar. The Kaduvetti family was one of some importance with members of which the Uttumalai Thevars might well intermarry. The present Zamindarni is connected with it. The 1st respondent's case, if established, would show that his grand-mother was a suitable bride for the Zamindar and would also raise a presumption that she would not have consented to live with him as a concubine. The earliest details as to the pedigree of Gomathimuthu are given in the course of some litigation in 1894. The stock to which she claimed to belong was however referred to incidentally in 1892 (Exhibits T and TTTT). The chief evidence bearing on this matter comes from members of the Kaduvetti family. Several have been examined on either side and they have supported the parties calling them. There is no doubt that one set of witnesses or the other is giving deliberately false evidence. The statements have been successfully criticised by the learned pleaders oh either side. The reasons given by the Subordinate Judge for accepting the version of the plaintiff are not convincing. If it be unlikely that plaintiff's witnesses would claim relationship to a dancing girl, it is also unlikely that the defence witnesses would convert a near relation into dasi to support the appellant's case. There is a curious absence of any evidence of intercourse between Gomathimuthu and her own family during her long residence in Veerakeralempudur and Uttumalai. It is also a significant fact that in Exhibit XXXVII, the order of the Collector of Tinnevelly, dated 17th January 1853, excluding Maruthappa Thevar from the Uttumalai limits, no reference is made to the fact that his own daughter was then living [in the palace at Veerakeralempudur. The evidence for the plaintiff falls short of establishing the relationship upon which he relies.

16. The appellant relies on the evidence regarding the treatment of plaintiff's grandmother both before and after 1850 as being inconsistent with marriage. It is also contended that official records lead to the conclusion that the Zamindar was survived by one widow only.

17. As to treatment prior to 1850, the main fact relied upon is the admission that plaintiff's grandmother did not live in the main building at Veerakeralempudur palace but in a thatched structure detached from the rest of the residence. It was called 'Thottikattu.' The lady was distinguished by this name at times and the portion of the Uttumalai palace which she subsequently occupied is described by the same name. It is suggested that a distinction was drawn between her and the lawful wife by attaching to her the name of the building which she occupied while under the Zamindar's protection.

18. The records referred to above, relate to the inquiries and reports made by the Board of Revenue and the Collector of Tinnevelly on the death of the Zamindar in 1850. Only one document was admitted in evidence by the Subordinate Judge but for reasons given by the learned Chief Justice in his judgment two more have been admitted now. These are the reports of the Muzumdar of Tenkasi, dated 7th October 1850, and the Collector's takid, dated 2nd October 1850 to which it was a reply. Unfortunately, the whole correspondence is not produced. The earlier reports cannot have been inconsistent with those now before the court but the later reports would have thrown a great deal of additional light on the state of the family of the deceased Zamindar. This appears from the inquiries made by the Collector in his takid of 2nd October 1850. The takid was not replied to as a whole. The answers to the questions bearing directly on the matter now in issue are not filed. The arzi of 7th October 1850 is a reply urgently called for as to the management of the property. The whole of the correspondence produced relates to this matter only and this has to be borne in mind in judging of its evidentiary value. The Zamindar died on 23rd September 1850, and the Collector's report which is incorporated in Exhibit XXXIII was submitted on 18th October 1850. Prior to the dispatch of this report, the Collector had received arzis from the Muzumdar and had been interviewed by the minor son of the late Zamindar with the Estate agents. The documents show that the Muzumdar asserted that the Zamindar had had one wife only and lead to the inference that up to the 18th October the Collector had heard nothing of a second wife. If a second wife existed the fact must have been well known. It seems unlikely that the local officials would have dared to suppress the fact, yet the Collector could hardly have been kept in ignorance of it except by wilful suppression by the Muzumdar, the minor, and kariastans. It may be safely assumed that, whether plaintiff's grandmother was a wife or concubine, there was no dispute as to her status in 1850. If any such question had been raised, it is almost inconceivable that the friendly relations which subsisted for so long could have been maintained. As to treatment subsequent to 1850, the Advocate General for the 1st respondent has laid great stress on the fact that the plaintiff's grandmother and her daughter lived in Thottikattu building during the minority of the young Zamindar, while his mother was managing his property and until 1868. This is another matter which renders improbable the appellant's account of the origin and past career, of the plaintiff's grandmother. It has however to be remembered that there is no wide gulf fixed in the community to which the parties belong between the position of a wife and a permanent concubine. The case for the plaintiff rests mainly on the inference to be drawn from the treatment accorded to his grandmother and her descendants by the Zamindar Hirudalaya Maruthappa Thevar who succeeded in 1850 and died in 1891. Letters, accounts and orders for the period from 1876 to 1890 are relied upon. It appears that there is a quantity of older records in possession of the Agent of the Court of Wards which is now managing the Estate. Neither party seems to have taken prompt and effective steps to have these examined. There seems to me to be no good reason for supposing that the attitude assumed by Hirudalaya from 1876 onwards differed from that taken up previously. The genuineness of the accounts and orders is not disputed and objections have been raised to only a few of the letters. Exhibits QQQQ and RRRR series are impugned and the Advocate General stated that he did not regard them as adding anything material to the strength of his case. Exhibits H and J are of importance if it be proved that they were sent by or with the approval of the present Zamindarini. The evidence as to this is unsatisfactory.

19. With regard to the undisputed documents, the 1st respondent contends that they establish that Hirudalaya addressed plaintiff's grandmother, her daughter Gnanapurani, and their descendants in terms which indicate legitimate relationship, that he had marriages and other ceremonies conducted for them at his expense, and that he made provision for Gnanapurani on a scale appropriate to her position as his legitimate sister. The explanation tendered for the appellant is that there is nothing in any of these acts inconsistent with his case as to the nature of the union between the Zamindar and Gnanapurani's mother. There is no doubt that Gnanapurani was married at the Zamindar's expense and into a respectable family. Hirudalaya was present at the ceremony. Marriages and various other ceremonies for her children were also conducted at the expense of the Estate. The facts do not by themselves prove that the relationship was legitimate but they certainly form important material for consideration along with the other evidence. In this connection, it has to be remembered that plaintiff's grandmother and her descendants appear to have been the only near relatives of Hirudalaya and that as regards Gnanapurani's descendants they were of legitimate birth. The appellant contends that Hirudalaya did not attend in person that the expenditure was on a small scale and not in excess of that incurred on ceremonies connected with other relatives more distantly connected than a step-sister. It is further pointed out that the marriages of Gnanapurani's daughters were not celebrated at the Zamindar's headquarters, while the reverse was the case with some other relatives. There is no clear direct evidence that Hirudalaya attended the marriages and other ceremonies performed for Gnanapurani's off-spring but there is also nothing which indicates that he did not attend. It is admitted that he was present at the marriage of Gnanapurani and there is nothing unlikely in his having attended the marriages of her children. The scale of expenditure appears to have been fairly lavish in connection with the earlier ceremonies at least, and I am unable to find that there is anything in the comparison instituted by the appellant to help his case. The marriages referred to as having been celebrated at Veerakeralampudur were of girls who were permanently living there. After all, Uttumalai was also a palace of the Zamindar and little importance can be attached to the fact that the marriages took place there.

20. The correspondence relates to the time when plaintiff's grandmother and the daughter had moved to Uttumalai. It shows that Hirudalaya took a deep interest in all the affairs of the family and that he addressed the members of it by terms which indicate close relationship. No doubt some of the terms used, for example, to Gnanapurani's husband and her descendants are reconcilable with his mother having been the Zamindar's concubine and not his wife. Instances are given in the evidence in which forms of address literally denoting close relationship were used to persons who were no relations at all. It is common knowledge that this practice prevails. There are however other letters especially those in which Hirudalaya refers to plaintiff's grandmother as his 'mother' and subscribes as her ' son' and some in which he refers to his own wife as 'your daughter-in-law' which cannot be explained away so easily. It is not enough to say that they are mere polite exaggerations. Zamindar Hirudalaya made considerable grants of pannai lands in favour of Gnanapurani and he appears to have managed them on her account. Subsequently in 1885, he purchased Naduvakkurichi Mitta for her at a cost of Es. 22,000. There is no clear evidence of any specific provision having been made for her mother. The latter must, of course, have been maintained from the Estate. The Subordinate Judge draws the inference that Gnanapurani would not have been treated in this way unless she had been a legitimate sister. This does not necessarily follow. The question rather is whether the cumulative effect of the evidence as to the treatment of his relations by Hirudalaya is sufficient to override the inference to be drawn from what happened in 1850 and to establish the plaintiff's case.

21. The last point to which I propose to make reference is the contention for the appellant that the delay in putting forward plaintiff's claim is fatal to its success. During the life-time of Hirudalaya Thevar, Gnanapurani and her nother were well, provided for, and there is nothing to indicate that any occasion arose on which it was necessary for them to assert their position as legitimate relations. On his death the claim was put forward at once. Vide Exhibit UUUU, dated 14th August 1891, and was repeated on several occasions. It is referred to in the Collector's report, Exhibit XXII, dated 12th September 1891. The fact that Minakshi Sundara Nachiar denied that the relationship was legitimate is also mentioned. It is stated that the claim is ' not very seriously pressed' and it does not appear that any inquiry was made about it. There were at the time two persons alive who claimed to be widows of the last Zamindar and also an adopted boy. It is true that the claim put forward by Gnana-purani was to immediate possession of the Zamindari on behalf of herself and her sons but unless and until the other claimants' right could be got out of the way, Gnanapurani would have no chance of success. Under the circumstances, no great importance can be attached to the failure to press the claim at this juncture. After the death of the adopted boy, an interpleader suit was filed by the Collector of Tinnevelly with a view to determining the rights of the ladies who claimed to be widows of the late Zamindar. It is urged that Gnanapurani and her sons would have intervened in this litigation had they believed in the status they claimed. Assuming that it was open to them to intervene it may well be that they saw the difficulty of establishing any present right to possession as against both the other claimants. Subsequent to this litigation, it does not appear that with one exception any suitable occasion offered itself for the assertion of these claims in court. Meenakshi Sundara was in possession as limited owner. An alienation of hers was questioned by one of the plaintiff's brothers in Original Suit No. 54 of 1907. The mortgage to which the suit related was however paid off after institution of the suit, and the suit was withdrawn before contest. No claim was made by Gnanapurani's mother for maintenance until 1911, but she had been living with her daughter and as has been seen, ample provision had been made for the latter. Under the circumstances, I do not think that any adverse inference can be drawn from the delay in bringing this suit.

22. There was a good deal of litigation between the representatives of the Uttumalai Estate and Gnanapurani which turned upon whether she was a tenant in respect of the pannai lands which had been granted to her by Hirudalaya. She consistently based her rights on a gift made in consideration of her relationship. The dispute was eventually compromised. On a consideration of the evidence on this point, I cannot see that any inference unfavourable to the plaintiff is necessary.

23. I purposely refrain from expressing any opinion on the effect of the evidence as a whole.

24. I agree with the judgment of the learned Chief Justice as regards the connected appeals.

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