1. This is a suit to establish the plaintiff's title to the zamindari of Saptur in the Madura district together with its appurtenances, and for the plaintiff's half share of such properties belonging to the late zamindar as are partible. The suit is valued at some five (5) lakhs of rupees, and the following facts are admitted, namely, that the zamindari and its appurtenances are impartible; that the plaintiff is the son of Nagayasami Kamaya Naik, who was the last zamindar but one of Saptur; that the defendant is another son of the same person; that, after),he death of their father in October 1885, his eldest son, also called Nagayasami, succeeded to the zamindari, that this Nagayasami died while a minor under the Court of Wards, unmarried, on the 31st of December 1887, the succession to whom is now the subject in dispute, and that the plaintiff is the eldest surviving son of the previous Nagayasami, being aged 9 years at the time of suit, while the defendant was aged only 7 years at that time. The plaintiff claims the succession by his mother, Nagammal, as his next friend, as the senior in age of the surviving brothers of Nagayasami Kamaya Naik, the last male holder, according to the law and custom of primogeniture. The defendant pleads his right to the succession in preference to plaintiff on four (4) main grounds, namely, first, that plaintiff's mother, Nagammal, was not legally married to their father, and that plaintiff was therefore, an illegitimate son; while he, the defendant, is admittedly the legitimate son by his mother, Muthuveerammal; secondly, that even if the plaintiff's mother was legally married to the late zamindar, she was a lady of a different and inferior caste and rank to that of the defendant's mother; thirdly that by family custom, the defendant is entitled to succeed by reason of his mother having been married prior to the plaintiff's mother; and fourthly, that he is a full brother of the last holder of the zamindari, while plaintiff is only the half-brother.
2. The first question then for decision is whether the plaintiff's mother was the lawful wife of his, the plaintiff's father; and this question has branched into two issues. One is whether the plaintiff's mother was married, in fact, to the plaintiff's father, or kept as his mistress, and the other is whether she was of a different and inferior caste to that of the father of the plaintiff, and therefore no valid marriage could be contracted between them. The Subordinate Judge has found that the plaintiff's mother was married to the plaintiff's father in 1875 in the dagger form; that a dagger is used by the Saptur zamindars, who are surnamed Kattari Kamaya in the case of inequality in the caste or social position of the bride; that though the customary rites of the Kumbla caste were also performed, yet the use of the dagger was an essential addition; and that, though according to his finding she was of a different and inferior caste to that of the plaintiff's father, yet that did not invalidate the marriage.
3. In Appeal No. 78 of 1891, the defendant, as appellant, contends that there was no marriage, in fact, between the plaintiff's mother and his father, and that the plaintiff's mother being of a different and inferior caste, could not, according to the custom of the plaintiff's father's caste, have been legally married to him.
4. The plaintiff, as appellant, in Appeal No. 95, contests the finding of the Subordinate Judge that his mother was of a different and inferior caste to that of his father. As to the factum of marriage, there is voluminous evidence, both oral and documentary, to prove beyond a doubt that, on the 9th of July 1875, the plaintiff's mother was united to the plaintiff's father by a number of ceremonial rites. It is needless for us in appeal to repeat in detail what has been fully set forth on this subject in the judgment of the Subordinate Judge, because the defendant himself does not and cannot, dispute that on the date named some ceremonial took place for the union between the plaintiff's mother and his father. That evidence establishes that on the 9th of July 1875, the marriages of three men were celebrated, two of whom were persons of the name of Thumbayasami and Thathaya Naik. On that same day the plaintiff's mother, Nagammal, and her sister, Kumarammal, admittedly went through a form of marriage with the zamindar, the plaintiff's father, in which form a dagger played a very prominent part. The defendant's case is that the zamindar did not appear in person at the ceremonial but was represented by this dagger, and that the third bridegroom who was present was not the zamindar but a bandy driver of his named Ramasami, and that, owing to the non-presence of the zamindar there could not have been a valid marriage between him and the two ladies with whom he was undoubtedly united on that occasion (though as the defendant says only in concubinage) because the mere tying of the bottu in the presence of the dagger was not sufficient to constitute a valid marriage ceremonial. Exhibits XXXII and XXXII-A show that, in the year 1800, it was reported by the Collector that the mere tying of the bottu did not of itself constitute a marriage, but simply signified a promise of constancy. The plaintiff, on the other hand, asserts that the driver Ramasami was not married on this occasion, but six months before, and that the third bridegroom who was present was the zamindar himself, and that the dagger was used only as an addition or an ornament to the ceremony. It is the presence of this dagger which has given rise to all the uncertainty as to whether it was a form of marriage or of concubinage that was adopted on the occasion. The defendant's argument is that the dagger was there to represent the zamindar as he did not attend in person, and that, by his non-attendance, there could have been no joining of hands or other essential for constituting a valid marriage, for, to constitute a valid marriage, there must be, if the marriage is a sacrament, the due performance of nuptial rites Brindavana v. Badhamani I.L.R. 12 Mad. 72 and, if it is a contract, there must be an intention to marry. It is argued that the very absence of the zamindar showed there was no intention on his part to marry, if the marriage was a contract, and that, if it was a sacrament, the essentials for the due performance of nuptial rites could not have been performed. The plaintiff's argument is that the nuptial rites were duly performed, the zamindar being present; that the dagger was there merely as an ornament, and that it was customary for people of the zamindar's caste to have a dagger paraded on the occasion of marriages. The Subordinate Judgehas found that the dagger was there for the purpose of indicating that the two ladies, Nagammal and her sister, Kumarammal, whom the zamindar married, were of an inferior caste and rank. We consider that the evidence on behalf of the plaintiff as to the actual presence of the zamindar at the ceremonial is overwhelming. Not only is there the direct evidence of many of the plaintiff's witnesses, who were present on the occasion to the effect that the driver Ramasami was not married at that time, and that the zamindar himself was the third bridegroom, but there is also documentary evidence showing clearly that the zamindar and no one but the zamindar, was one of the three bridegrooms present on the occasion. Thus Exhibit C series, which are the zamindar's own palace accounts showing the money received and disbursed for the marriage festival, is unequivocally headed as for the marriage of the zamindar, and in those accounts there are items of expenditure which could apply only to the zamindar, such as the receipts of moyi or wedding presents which, from the persons who made them, could only have been made to the zamindar. There is an entry for the cost of horses, for the procession called the 'yekalichi' for the outside bridegrooms, with another entry for a similar procession, which, by inference, must be taken as referring to the inside bridegroom, the zamindar. There is an entry for the cost of a toe-ring put upon the zamindar. These accounts read with Exhibit D further show the purchase of two rich silk marriage cloths called kandangi, which could have been intended only for the ladies united to the zamindar; for the other two women, who were married on that day, were poor dependents of the zamindar who would not have had such valuable cloths bestowed upon them. These marriage, accounts further show very liberal expenditure in other matters, such as the distribution of rice which was made on far too large a scale, if only persons of oridnary rank had been married. Another account (Exhibit E-I) is proof that drummers were paid for four marriages. This shows that the two ladies must also have been married; for, if the defendant's account were true, there could only have been three marriages.
5. Against this, defendant has adduced no evidence of any value to prove that the zamindar was not present in person, and he has carefully avoided bringing forward any evidence as to what really did take place on the occasion in question. There is, therefore, no ground whatever for the assertion that the zamindar was not present at the time; and those witnesses who speak to his presence speak also to his going through the necessary acts which were necessary to constitute a valid marriage between people of the Kumbla caste. The defendant's contention, therefore, that there could have been no valid marriage in consequence of the absence of the zamindar falls to the
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appears that they afterwards lived in separate apartments in the palace, it was in the palace they lived and not outside it as the concubines did. It also appears that when the late zamindar was committed to jail in 1884, and his wives were sent to Bodinayakkanur to be taken care of by the zamindar of that place, the plaintiff's mother, as well as another dagger wife, accompanied them (Exhibit XXXVIIId). In Exhibit VVV the defendant's mother herself treated Muttukamatchi Animal, a dagger wife already alluded to, as a married wife of the zamindar, her husband. In Exhibit WWW the same Muttukamatchi Ammal and the plaintiff's mother joined two of the admitted wives in a petition to the Board of Revenue against the defendant's mother, claiming equality between themselves and the defendant's mother. Plaintiff himself performed the first annual ceremonies of his father jointly with the defendant, as shown in Exhibit JJ, and there is nothing to show that the defendant's mother objected to the plaintiff's doing so; and after the death of the husband, the late zamindar, she, the plaintiff's mother, was treated as a wife by the Government officials concerned with the Court of Wards (see Exhibit S among others). It is unnecessary to refer to all the evidence proving that the plaintiff's mother was lawfully married to the zamindar, and her recognition as his lawful wife, because, except for the circumstances which have been mentioned above, as urged on behalf of the defendant and which have been explained, all the rest of the evidence is in her favour. We have, therefore, no hesitation in agreeing with the Subordinate Judge that the plaintiff's mother was the lawful, though a dagger wife of his father, provided there was no impediment to their marriage. The impediment pleaded by the defendant is that the lady being of a different and inferior caste to that of the zamindar, could not be lawfully wedded to him. It is not contended that in the absence of a particular custom such a marriage would be invalid in the face of the rulings of the Privy Council in Inderun Valungypooly Taver v. Ramasawmy Pandia Talaver 13 M.I.A. 141 and Ramamani Ammal v. Kulanthai Natchear 14 M.I.A. 346. In the former case it was held that, by Hindu law, marriage between Sudras where the husband is of a superior caste to that of his wife, is valid, and in the latter case that a marriage between a man of one sub-division of the Sudra caste with a woman of another sub-division of the Sudra caste is valid by Hindu law. But, what the defendant sets up is a local or caste custom among the Kumbla Naiks prohibiting such unions. The learned Advocate-General has referred to Mr. Mandlik's work on the Mayukha and Yagnavalkya (pages 400 et seq.) to prove that usage will override the ordinary Hindu law, and contends that he has in this case proved the custom set up. On this point, we find with the Subordinate Judge that there is no reliable evidence whatever of any such custom prevailing among the zamindars of the Kumbla caste. The evidence in respect thereto is only oral and is of a meagre description. It is true that the plaintiff's mother has endeavoured to show by recitals in documents relating to herself or to her relatives (Exhibits B, GG, GGG, and DDD) that she was of exactly the same caste as the zamindar's, and it is true that the defendant has also endeavoured by evidence (Exhibits XA, XB and XIII) equally suspicious because the documents on both sides are all of recent date and after the death of the late zamindar, to prove that she was not so. The Subordinate Judge has, however, found that her caste was not Kumbla Totiya as the zamindar's was, but Parivara which he treats as an inferior caste. But one thing is certain, and that is that they were both of the Sudra caste and that legal marriage was possible between them. The zamindar would never have attempted to marry a woman whom he knew he could not marry, and the legal presumption is that when there is a marriage in fact there is a marriage in law. Inderun Valungypooly Taver v. Ramasawmy Pandia Talaver 13 M.I.A. 158 There is no proof of a special custom in this case prohibiting such marriage.
6. The second main point for determination in the case is whether, having found that the marriage of plaintiff's mother with his father was a valid marriage, the plaintiff's mother was of a caste and rank inferior to the defendant's mother's and, if so, whether that would entitle the defendant to succeed in preference to the plaintiff. Although they both were of the Sudra caste, we have no difficulty in deciding that the status and rank of the plaintiff's mother was inferior to that of the defendant's mother. The defendant's mother was the daughter of a zamindar, while the plaintiff's mother was the daughter of an ordinary ryot. The defendant's mother had no strain of mixed blood, while the plaintiff's mother was of the Parivara caste or the descendant of parents of illegitimate origin--vide paragraphs 35 and 36 of the Subordinate Judge's judgment--the correctness of the conclusion in which there is no ground for disputing. The inferiority of the plaintiff's mother's status as wife is the only reasonable explanation for the presence of the dagger at her marriage. In the case of the admitted wives of the zamindar, there was no dagger used when they were married, so that the only way to account for its use at the marriage of the plaintiff's mother is that it was intended to indicate her status as an inferior description of wife or as a dagger wife. If it was not intended to denote the inferiority of status of the plaintiff's mother, no other satisfactory explanation is afforded by the evidence for the use of the dagger. The theory for the defendant that it represented the zamindar who was absent has been already exploded. There is no proof that the dagger was invariably used in the case of all marriages between people of this caste. In fact, it is admitted that the use of the dagger is extremely rare, and only two or three instances of it are given in the plaintiff's evidence. There are also other circumstances indicating that the marriage of the plaintiff's mother was not conducted in the same way in which the marriages of the zamindar's regular wives were celebrated. Considerably less money was spent upon it than in the case of the admitted wives, and it was combined with the marriages of two other people of inferior rank--of persons who were poor dependants of the zamindar--one indeed of whom, Thumbayasami, was a brother of the plaintiff's mother. Then the plaintiff's mother and the other dagger wives, as a rule, lodged separately and messed separately from the other wives. It is, therefore, clear to us that the plaintiff's mother was in status and rank inferior to her husband and the defendant's mother. The question then arises whether, having found the plaintiff's mother and the defendant's mother to be of the same main caste, namely, Sudras though not of the same division, the difference in their rank or status would make them of a different class within the meaning of sloka 125, chapter IX, Manu. That sloka is to this effect: 'as between sons born of wives equal in their class and without any other distinction, there can be no seniority in right of the mother; but the seniority ordained by law is according to the birth.' The learned vakil for the plaintiff maintains that Manu alluded only to caste, as he was there dealing with caste, and that any other construction would be meaningless. But the ancient author seems to have been dealing with the equality of wives generally, and it is quite possible, as in this case, that two ladies may be of the same main caste and yet belong to different subdivisions of that caste, and therefore be unequal in class or rank. The strict literal translation of the phrase rendered as 'wives equal in their class' is 'like wives' which would allow of the wider interpretation that if there were any substantial inequality in the rank or status of the wives they would not be 'like wives.' Within each of the four main divisions of Hindu caste it is notorious that there are many classes or ranks and these are perhaps most numerous in the Sudra caste, and it appears to us that their Lordships of the Privy Council, in making use of the words 'caste and class' in their judgment in Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar 14 M.I.A. 592 contemplated inequalities besides those in the main caste only, for otherwise the word 'class' would be superfluous if it was taken to be synonymous with the main caste.
7. We are therefore prepared to hold with the Subordinate Judge that what is indicated in the text of Manu is inferiority of the class of the wife more than that of the main caste. In this view, and finding for reasons already stated that plaintiff's mother was of an inferior class to that of defendant's mother, it remains to be decided whether that fact would be ground for preferring the defendant to the plaintiff. Sloka 122 of the same chapter in Manu is to this effect: 'A younger son being born of a first married wife after an elder son had been born of a wife last married, but of a lower class, it may be a doubt in that case how the division shall be made.'
8. That is just the case we have here, but unfortunately Manu has not directly decided the doubt that he raises, and, as the Subordinate Judge points out, there appears to be no precedent. The point was noticed but not decided in the Privy Council case, Pedda Ramappa Nayanivaru v. Bangari Sheshamma Nayanivaru L.R. 8 IndAp 1 The two slokas 123 and 124 following the sloka 122 indicate that in the case therein contemplated the younger son of the first married wife being of a higher class would take a larger share of the property, and we are of opinion that this fact taken with the implication in sloka 125 that there would be a difference between the sons in cases where their mothers were of different classes is sufficient to show that the right of the junior son by a first married wife if she be of higher class is a superior right to that of the elder son of a wife of lower class. It follows that when the competition between them is, as in this case, to an indivisible property, the right of him who has the superior right, if the property were partible, must prevail. We, therefore, agree with the Subordinate Judge in finding on this point in favour of the defendant.
9. We consider that this view is in accordance with the analogies of general Hindu law as applied to partible property. The decisions of the Privy Council both in Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar 14 M.I.A. 592 and in Pedda Ramappa Nayanivaru v. Bangari Seshamma Nayanivaru L.R. 8 IndAp 1 are authorities only for the proposition that as between sons born of wives equals in class and without any other distinction, there is no seniority in right of their mothers, but that the seniority recognized by law is according to birth. In the present case, however, the plaintiff's mother and the defendant's mother are not equal in caste or class. There is the further distinction between them, viz., that the former is a dagger wife, whilst the latter was married by the pure Kumbla caste rites without the intervention of a dagger. In the Bangari Palayam case, their Lordships of the Privy Council expressly stated that they did not decide what would be the proper rule of succession when the wives were of a different caste or class. The text of Manu, chapter IX, 125, as interpreted by Kallukka Bhatta, on which their Lordships rest their decision, premises the case of sons born of wives of equal caste and without any other distinction. This case falls, therefore, to be decided on the principle laid down by their Lordships in the Urkad case in the following terms: 'Now, no work of authority or decision directly relating to the descent of property, which, at the present day, is governed by the rule of primogeniture was cited at the bar, nor have we found any materially bearing on the question. We must, therefore, decide it upon principle, and by analogy to the existing general law of inheritance and upon what; we find laid down in early times when primogeniture by general law conferred some special rights and privileges which no longer exist.' The question then is what is the rule suggested by analogy, first, to the existing Hindu law of inheritance and, next, to the Hindu law as it existed in early times when primogeniture conferred by the general law certain special rights and privileges? Under the former we may take, by way of analogy, the cases in which the rival claimants of an impartible estate arc a legitimate junior son and an illegitimate senior son or an after-born son and an adopted son. In the first case, among Sudras, both sons take shares in partible property, but the illegitimate son takes only half a share (Mitak-shara, chap I, Section XII, sloka 3).
10. This is the first exception to the general rule that, though sons may share in partible property, the son born of a concubine is only a secondary son and son born of a wife is the primary son and preferable heir to impartible property.
11. Turning to the case of a disputed succession to an impartible estate in which the rival claimants are an adopted son and the after-born legitimate son, it is stated in Dattaka Ghandrika, Section V, 32, that among Sudras, they take equal shares in partible property. But the succession to impartible property, nevertheless, devolves on the after-born son in preference to the adopted son, the reason being that the adopted son is a substitute for the aurasa son, and that, when the latter comes into existence, he excludes the substitute.
12. This is the second exception to the general rule under which, of two sons, who may be entitled to share alike in partible property, one is the principal or primary and the other as a mere substitute is a secondary son, and as such, excluded by the other, though his junior in years, from succession to impartible property. The succession of a legitimate son to an impartible estate in preference to an illegitimate son, and of an after-born son in preference to an adopted son does not rest on mere inference. In Dattaka Ohandrika, Section V, 26, a vedic text is referred to as ordaining that kings shall not appoint to the empire any of the twelve descriptions of sons, which included also the adopted son and the son of a female slave when a legitimate son existed. It is hardly necessary for us to add that the Palayapats of Madura and Tinnevelly were, prior to the commencement of the British rule, in the nature of petty principalities or tributary chieftainships.
13. Looking again to the ancient Hindu law, we find an analogy in 'anuloma' marriages. A Brahmin was in former times at liberty to marry a Brahmin wife, a Kshatriya wife, a Vaisya wife and a Sudra wife; so a Kshatriya was entitled to have a Kshatriya wife, a Vaisya wife and a Sudra wife; so it was permitted to a Vaisya to have a Vaisya wife and a Sudra wife. Hence it is stated in the Mitakshara, chap. I, Section VIII, v. 2 that instances do occur of a Brahmin having four wives, a Kshatriya three, and a Vaisya two, the wives being of different vara as or castes or tribes. This form of marriage with women of inferior castes was called anuloma union and it was a permitted connection, while pratiloma union, that it is to say, of a man of an inferior class or varna with a woman of a superior class, was a prohibited connection. The author of the Mitakshara explains in chap. I, Section VIII, v. 4 how rights of sons of wives of different classes, when partition was made between them, were jegulated, and states that the sons of a Brahmin by a Brahmini woman took lour shares apiece, his sons by a Kshatriya wife, three shares each, by a Vaisya woman two, and by a Sudra one. In the same manner the sons of a Kshatriya born to him by women of the several tribes had three shares, two or one in the order of the tribes (castes). Likewise the sons of Vaisya by women of the several tribes have two shares and one in the order of the classes. Again, in chap. XI, Section I, v. 47 the author of the Dayabhaga adverting to the texts of Manu, chap. IX, 85, 86 and 87, states that the rank of wife belongs, in the first place, to a woman of the highest tribe, and seniority is reckoned in the order of tribes. Thus, Manu says, when regenerate men take wives both of their own class and others, the precedence, honour and habitation of those wives must be settled according to the order of their classes. Therefore (since seniority is by the tribe) a woman of equal class, though youngest in respect of the date of marriage, is deemed eldest. The rank of wife (patni) belongs to her, for she alone is competent to assist in the performance of sacrifices and other sacred rites. This is the third exception to the general rule in which the son by the dagger wife is by analogy to anuloma marriage only a secondary son who, though senior in age, is excluded by a son of a wife equal in caste and rank.
14. Thus the rale deducible by analogy from this branch of ancient Hindu law is one of preference in favour of the son by a wife of the same caste or rank. It follows that when a Sudra marries a woman of an inferior division of his caste, as a dagger wife or as a wife of an inferior class in addition to his wife equal in caste to him, the rule of selection is in favour of his son by the latter by reason of his mother being of a higher class, or having the rank of patni.
15. It is argued by the plaintiff's pleader that the Sudras are all of one caste, though they belong to different sub-divisions. It is so for the purpose of permitting a marriage between a man of one sub-division and a woman of an inferior sub-division, but it does not follow that there are no gradations in respect of caste, status or rank. Surely, it cannot be said that there is no distinction between a man of the purest Vellala or Mudali caste, and a woman of the Palli or Shanar or toddy-drawer's caste, though their main caste is that of Sudras. The ancient conception of Sudras as one of the four leading classes has attained a considerable extension after the Dekkan and Southern India came within the pale of ancient Hindu law. The ancient Brahminical theory was that all the Sudras were intended to do service for, or to be the servants of, the regenerate classes. But this soon vanished when the class of Sudras came to embrace in it kings, rajas, provincial chieftains, aristocratic classes and numerous non-Aryan tribes, independent and influential, with peculiar marriage customs and with peculiar notions of the incidents of a legal marriage. It is notorious that Sudra rajas and zamindars often imitated Kshatriya kings in many respects, especially as regards the number and rank of wives they married and the concubines they maintained.
16. It is not improbable that the notion of a secondary wife or a secondary son came to prevail among some Sudra zamindars by analogy to anuloma marriages among Kshatriyas. The real question is whether there are traces of such consciousness in the present case. The offspring of the anuloma form of marriage, where the mother was of a caste inferior to that of his father, was not equal in caste to his father. If his father was a Kshatriya and his mother was a Vaisya, though they might legally marry, the wife did not acquire the status of a Kshatriya lady, and the son born of her, though legitimate, had not the caste, status or rank of a, Kshatriya, but had an intermediate caste and slatus. He was called 'mahisya', and, as compared with the son by a Kshatriya wife, he was only a secondary son. See Brindavana v. Radhamani I.L.R. 12 Mad. 72 In the same way, it may be that the plaintiff's mother, Nagammal, was, by reason of her descent from a man of the Kumbla caste and a woman of the Vellala caste, of inferior caste. In this view the Parivara caste is inferior to the Kumbla Tottiya caste, as found by the Sub-Judge, though their main caste is that of Sudras. It is noteworthy that when a special form of marriage is adopted to denote the wife's inferior caste or class, and she is since treated in the husband's family differently from a wife of equal class married by the pure caste ritual without the use of a dagger, the reasonable explanation is that she was taken and treated as a secondary wife not having the rank of patni within the meaning of the text of Manu. (Chap. IX, 85 to 87.)
17. The next or third point for determination (fourth issue in the lower Court) is whether there is a custom prevailing among the Kumbla zamindars, to which admittedly the parties belong, that the son by a senior wife has a prior right of succession to a son by a junior wife, although the latter may be the elder son, seniority referring to the date of marriage and not to the age of the wife. It is admitted in this case that the defendant's mother was married before the plaintiff's mother, but the alleged custom is not in accordance with the ordinary law of succession among Hindus where primogeniture is the rule irrespective of the seniority of marriage of the mothers. The law has so been clearly declared by the Privy Council in Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar 14 M.I.A. 570 and Pedda Ramappa Nayanivaru v. Bangari Seshamma Nayanivaru L.R. 8 I. A. 1 It therefore lies on the defendant to prove the special family custom. It must be borne in mind that the contest here is between two wives, neither of which was the first married wife or 'pattama stree' as the first or royal wife is called. Several instances have been given in evidence where a younger son by the 'pattama stree' has taken precedence of an elder son by a subsequent wife, but those cases are not to the point in this case, and all the evidence in regard to them must be rejected as irrelevant. The first married wife, as Mr. Mayne points out (Hindu Law, para. 87), has precedence over the others and her first-born son over his half-brothers, because a peculiar sanctity seems to have been attributed to the first marriage as being that which was contracted from a sense of duty and not merely for personal gratification, and it may be that among certain classes of people, the preference shown to her first-born son was extended to other sons born of her; so that it would not be fair to treat the case of her sons as on a par with the sons of subsequent wives. It is as between such wives that the question of custom must be considered here. This will eliminate from the record all the evidence which was confined to the competition between a son of a pattama stree and of a junior wife which forms the major portion of the evidence. The evidence adduced in support of the custom falls under three classes.
18. First, statements giving the opinions of deceased persons who are likely to know of its existence; second, similar opinions by living persons, and third, particular instances in which the custom was recognised and adted on. Under the first class, the evidence was naturally documentary, and much of it was either irrelevant for the reasons above stated, or inadmissible for reasons now to be stated. Section 32 (Clause 4) of the Indian Evidence Act, which allows of the admission of such evidence, requires that it should have been given before any controversy as to such custom had arisen; and the statement must refer to a custom or matter of public or general interest, and not to a particular case or instance. Now, to take the documents exhibited under this head in their order of date, we find Exhibits XXVI a and b, the opinions of the zainindars of Valayapatti and Erasakkanayakanur taken in 1826 inadmissible, as they refer only to the line of descent in their own particular estates, and they are irrelevant as they contemplate the case only of the first and a second wife. The next exhibits are the XIX series (a to r), opinions taken in 1849, with reference to the succession in the Perayur zamindari. These are objected to on the score that they were taken after controversy arose, but we find this not to be the case. The correspondence on the subject is to be found in Exhibits XXXIII series, and it shows that there was only a doubt whether the younger son by a senior wife should succeed before an older son by a junior wife. The Collector held the opinion that by custom the younger son should succeed and the Court of Wards being doubtful directed an enquiry to be made as to the custom, and it was found that it prevailed, and it was accepted and acted on. There had been a difference of opinion by the pundits who were at first consulted, but there was no dispute such as to render the evidence inadmissible. In order to effect this 'there must be not merely facts which may lead to a dispute but a lis mota, or suit, or controversy preparatory to a suit actually commenced or dispute arisen and that upon the very same pedigree or subject-matter which constitutes the question in litigation.' (Taylor on Evidence, page 556.) The competition in this Perayur case was between the second wife's son aged 2 and the eighth wife's son aged 8, and the opinions then taken are, therefore, relevant in the present case, so far as they refer to the general custom and to a contest between sons of wives other than the first married wife. All the persons, who gave them, are proved to be dead, and their original statements have been produced and proved in order to avoid the objection taken in the Urkad case that the originals had not been produced and proved. But some of these opinions must be rejected on other grounds. Thus the opinion of the Thevaram zamindar in Exhibits XIX and XIXa is inadmissible, as the opinion of a deceased person because it refers to the rule of succession in his own particular zamindari only. The opinion of the Bodinayakanur zamindar in Exhibits XIXb and c is inadmissible for the same reason; so also is the opinion of the zamindarni of Thottapanaic kanur in Exhibitf XIXf and those of the zamindar of Kannavadi in Exhibitj and k, and of the zamindar of Mambarai in Exhibits XIXq and r. The opinion of the zamindar of Erasakkanayakanur in Exhibit XIXl is irrelevant, as it refers only to the case of the senior wife, as well as only to the particular estate. Excluding these we have left the opinions of five zamindars, namely, those of Pulyankulam (Exhibits XIXd and e) of Uttapanaickanur (Exhibits XIXg and h) of Gandamanaickanur (Exhibit XIXm) of Kadavur (Exhibit XIXn) and of Edayakottai (Exhibits XIX o and p) all speaking to the general custom among Kumbla zamindars of the son by a senior wife taking the succession in preference to an older son by a junior wife.
19. The next, documents in time are in connection with the Virupakshi case in 1853 (Exhibits XXXIV series). The opinions therein given are irrelevant, as the son by the second wife who succeeded to the allowance was the eldest of the surviving sons.
20. The last batch of opinions forming the second mainstay in proof of the custom were in 1875, and are to be found in Exhibits XII a to k series, but we find one and all of them inadmissible, as the statements were undoubtedly made after controversy had begun. There was a dispute as to the succession in the Bodinayakanur estate like the dispute in the present case as to whether the younger son by the fifth wife was to be preferred to the elder son by the sixth wife. The Court of Wards recognized the right of the younger son, whereupon a suit was brought on behalf of the elder son in Original Suit No. 5 of 1875 on the file of the Subordinate Court of Madura. The Collector, as Agent of the Court of Wards, was made a defendant in the suit, and, in forwarding a copy of the plaint in the suit to the Court of Wards, applied for instructions to defend the suit. This was on the 13th July 1875 (vide Exhibit XXXVIIa), and it was after this the opinions were called for as appears from the Collector's letters (Exhibits XII b, d, h, and XVII) which are date in August 1875, and the opinions given are, of course, all of subsequent dates. There are other grounds on which these statements that have been used in evidence are inadmissible, such as that some of them are copies, their correctness as such also not being proved, but it is sufficient to reject them all on the broad ground that they were not given ante litum motam. This closes the first class of evidence adduced. The second class consists of thi opinions of living persons as to the general cuatom, and they are admissibL under Section 48 of the Indian Evidence Act. There are three such opinions as are relevant in this case, those of the defendant's nineteenth, twenty-fourtt and sixty-second witnesses. The nineteenth dofence witness says: 'In case the first wife had no sons, but the second and third wives had sons, the son of the second wife, even though younger in age, would have the right to the succession, and so on according to the order of wives.... The rule of succession stated by me is applicable to all divisions of Kumblas,' and this follows the opinion he gave in 1875 as a Kumbla zamindar (vide Exhibit XVIIa). The twenty-fourth defence witness is a Kumbla of the Thevaram zamindari, and he says that 'the succession in the case of Kumbla zamindars is regulated by the seniority of the mother irrespective of the ages of the sons.' The sixty-second defence witness is the father of the first wife of the late zamindar of Saptur, the father of the parties to this suit, and he states as follows: 'Among our Kumbla-zamins the right of succession is according to the order of wives. What is meant by the order of wives is that should there be a son to the first wife, the right of succession goes to that son; but, if there be no son to the first wife and the second wife has a son, it goes to that son. It is this what I mean by order. Even if the son of the second wife is older than the son of the first wife, the right of succession is only to the first wife's son. Similarly in the case of the sons of the other wives.' The evidence of the defendant's eighteenth witness is to the effect that the sons of the eldest wife succeed one after another, of which there was an instance in his own zamindari, but this does not apply to the matter in question as it relates only to the rights of the sons by the first married wife.
21. The third class of evidence offered in proof of the custom consists of particular instances, in which it was observed--evidence which is admissible under Section 13 of the Indian Evidence Act. The Perayur and Bodinayakanur cases referred to above are instances distinctly in point. In the former case the son of the second wife being only 2 years of age succeeded in preference to the son of the eighth wife who was 8 years old, and in the latter case, the younger son of the fifth wife took the succession in preference to the elder son by the sixth wife. But there is this to be said with regard to the latter ease that the elder son was an idiot and might have been disqualified on that ground alone, although the correspondence (Exhibit XXXVII) shows that the right of the younger son was recognized on the strength of the custom. Beside these clear instances, evidence has been adduced to prove similar instances in other zamindaris of the same caste, but as all of them appear to relate only to thecase of the first married wife or 'pattama stree,' they must be rejected as irrelevant for reasons already stated. Thus the case in 1861 in the Andipatti poliem (Exhibit XXXV series) was between the son of the senior wife, and the son of the second wife, there being only two wives, and it was the same in the Uttapanaickanur case in 1866 (Exhibit XXXVI) to which defence witnesses Nos. 20 and 21 speak. The instances given by the oral evidence of the witnesses Nos. 18, 19, 26 and 41 for the defendant also all refer to the sons of the first married wife, so that under this head of particular instances we have only the two instances of Perayur and Bodinayakanur as applicable to this case. But it must be remarked that cases of competition between the sons of junior wives in so small a community as the Kumbla zamindars are, must of necessity be, of rare occurrence when the son or sons of the first married wife always take precedence as much of the evidence shows they do.
22. The general result of the evidence as to the custom set up is that we have the opinion of five deceased persons and of three living persons plus two well-authenticated instances of its observance in proof of it, while there is nothing whatever on the other side to disprove it. It was contended for plaintiff that there was an instance in this Saptur/amindari itself where the son of a fourth wife succeeded in preference to the son of a third wife in the fact that in 1803 Vada Kamaya Naik, son of a fourth wife of his father, became zamindar after his elder brother by the first wife was hanged, in preference to Sangara-linga Kamaya Naik, a son of the third wife.
23. Assuming these facts to be proved by the genealogical table (Exhibit XXV) and by the evidence of the plaintiff's first and forty-first witnesses, and that Sangaralinga Kamaya Naik, the son by the third wife, afterwards succeeded Vada Kamaya Naik, son by the fourth wife, as shown by Exhibit TTT, they do not prove the circumstance they are used for. In the first place Vada Kamaya Naik was treated by the Government as the istimrar zamindar by its sannad SSS after his brother had been executed, and it may have been an act of State and not a case of succession but one of selection; and in the second place, there is nothing to show that Sangaralinga Naik was then born. He might have been born long after his brother had been recognized as the zamindar by the Government. The evidence then being all one way, and extending back as far as living memory and existing records go, can the custom be found to be sufficiently established according to the standard laid down by the Privy Council in Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar 14 M.I.A. 585 It is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends.' Now, out of the mass of evidence adduced, that which we have alone admitted as strictly applicable in this case is undoubtedly clear and unambiguous in favour of the alleged custom, and its antiquity and certainty seem to be proved as well as they can be among a set of people so absolutely lawless as these poligars were in former days. In respect to its certainty the opinions are unanimous, and are supported by two actual instances, while no opinion has been adduced against it, nor any instance given of a departure from it. And in respect to its antiquity it is spoken to as an old-established rule, 'whereof the memory of man runneth not to the contrary,' so far as is shown to us.
24. In these circumstances, we consider that the custom has been clearly proved to be ancient and invariable, and therefore one that our Courts must recognize. We accordingly confirm the finding of the Subordinate Judge in this matter.
25. The next question in the case is the fifth issue, namely, whether, on the death of the last zamindar, his full brother, the defendant, is entitled to succeed to the zamindari, which is admittedly an ancestral, impartible estate held by only one member of the family at a time, in preference to the plaintiff his half-brother. The Subordinate Judge decides it in the negative, and, in that opinion, we concur. Their Lordships here repeated verbatim that portion of the judgment in Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai I.L.R. 17 Mad. 316 which commences with the word 'apart' in the second line of the second paragraph on page 325 of this volume and ends with the word 'succeed' in the last line of the fourth paragraph on page 334.
26. The last points for our determination are matters of detail in regard to what properties in schedules C, D and E of the plaint are to be considered as partible between the plaintiff and the defendant.
27. Schedule C refers to the 'pannai' lands, and the Sub-Judge has given excellent reasons for holding that such of them as were acquired by the grandfather of the parties are not partible, but must Be considered as appurtenant to the zamindari; hnx, he has held that those acquired by the father are partible. It would appear that the Sub-Judge has here erred in treating the father as the last holder of the estate, because exactly the same reasons which he gives for holding the acquisitions of the grandfather to have been incorporated in the estates apply with equal force to the acquisitions of the father. They all alike descended to the last holder, the brother of the parties to the suit. The principle is laid down in the judgment of this Court in Lakshmipati v. Kandasami I.L.R. 16 Mad. 54 that it is a question of intention whether the zamindar, for the time being, who acquires fresh lands, means to incorporate them with the zamindari or to treat them as separate private property. His object in acquiring them as private property could only be for the, purposes of alienation, and the presumption is that if he does not alienate them in his lifetime or by testamentary disposition his intention was to add them to the estate.
28. For this and the other reasons discussed by the Sub-Judge upon the evidence in the matter, we are of opinion that all the lands comprised in Schedule C were merged in the estate proper and are, therefore, not partible. The properties in Schedule D are ryotwari lands and house properties, and we see no reason to differ from the Sub-Judge's finding in respect to these, namely, that items Nos. 1 to 8 being lands not situate within the zamindari, were distinctly the private properties of the zamindari, and therefore partible, while the other items Nos. 9 to 15 were appurtenant to the zamindari as palaces and places of residence, etc., and therefore impartible. Schedule E relates to moveables which we agree with the Sub-Judge in finding to be partible, as the rule of impartibility applicable to zamindaris does npt extend to the personal property left by a zamindar Maharajulun Garu v. Rajah Row Puntulu 5 M.H.C.R. 13.
29. The result of our decision is that the appeal of the plaintiff is dismissed and the Sub-Judge's decree is confirmed in all respects excepting as regards some of the 'pannai' lands comprised in Schedule C of the plaint which are now all declared to be appurtenant to the zamindari, and plaintiff has therefore no right to share therein. The lower Court's decree will be modified accordingly, and the proportionate costs there decreed payable by the defendant to the plaintiff will be reduced by that extent and added to the proportionate costs payable by the plaintiff to the defendant.
30. The appeal of the defendant is otherwise dismissed. In regard to costs in this Court, we shall leave each party to bear his own, each having failed on the main grounds of his appeal.