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Kachi Yuva Rangappa Kalakka Thola Udayar Vs. Kachi Kalyana Rangappa Kalakka Thola Udayar and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1901)ILR24Mad562
AppellantKachi Yuva Rangappa Kalakka Thola Udayar
RespondentKachi Kalyana Rangappa Kalakka Thola Udayar and anr.
Cases ReferredNaraganti Achammagaru v. Venkatachalapati Nayanivaru I.L.R.
hindu law - devolution of impartible property--right of nearest co-parcener of senior line--impartible estate--original incidents of impartibility--expulsion of occupants--restoration under british rule after lapse of time during which enjoyment suspended--continuance of incidents of impartibility. - - 1. the principal question in the case is whether the estate now known as the zamindari of udayarpalayarn is the partible property of the plaintiff's family or is held as an impartible estate, the district judge has found that the original palayam as it stood until the expulsion of the first defendant's ancestor in 1765 was, like other palayams in the karnatic, an impartible estate. 2. the question regarding which there is the chief contest is whether, in view of the circumstances in.....1. the principal question in the case is whether the estate now known as the zamindari of udayarpalayarn is the partible property of the plaintiff's family or is held as an impartible estate, the district judge has found that the original palayam as it stood until the expulsion of the first defendant's ancestor in 1765 was, like other palayams in the karnatic, an impartible estate. having read the evidence discussed by him and heard arguments upon it, we are of opinion that the conclusion at which he has arrived is right, and that there can be no doubt that the palayam was up to 1765 held by one member of the family only, not being subject to the ordinary rule of hindu law.2. the question regarding which there is the chief contest is whether, in view of the circumstances in which the.....

1. The principal question in the case is whether the estate now known as the zamindari of Udayarpalayarn is the partible property of the plaintiff's family or is held as an impartible estate, The District Judge has found that the original palayam as it stood until the expulsion of the first defendant's ancestor in 1765 was, like other palayams in the Karnatic, an impartible estate. Having read the evidence discussed by him and heard arguments upon it, we are of opinion that the conclusion at which he has arrived is right, and that there can be no doubt that the palayam was up to 1765 held by one member of the family only, not being subject to the ordinary rule of Hindu Law.

2. The question regarding which there is the chief contest is whether, in view of the circumstances in which the sanad was granted in 1817, the estate comprised in that sanad came to be held by the family on terms different from those on which the original palayam was enjoyed. The plaintiff's case is that the estate comprised in the sanad was an entirely new estate, and that the quality of impartibility was never attached to it. The main grounds for this contention are that from 1765 till 1817 the zamindari was not, it is alleged, in the possession of the family at all, and the estate granted in 1817 comprised only part of that which the former palayagars had held. It is urged that a new grant was made of free grace to the istimirar zamindar, and that there was no intention that he should take it with the incident of impartibility which attached to the old palayam. What little is known of the palayam prior to July 1801 is contained in Mr. Wallace's report of 30th May 1802 (exhibit LIII). From this it appears that the palayagars of Arialore and Udayarpalayam had held uninterrupted possession of their respective palayams from very early times until after the siege of Madura in 1765, when they were expelled by the Nawab of the Karnatic and fled to Mysore. It further appears that with Hyder's aid, they returned in 1780 and drove out the Nawab's amildars and held 'precarious possession' or their palayams until 1783 when they ware won over to support the Company, and that during the first assignment, of the revenues of the Karnatic to the Company in 1785, they were replaced in possession of their palayams as renters, but having failed to pay their kist punctually, were imprisoned and the management of the palayams was entrusted to one of the chief servants of the palayagar of Udayarpalayam until the country was restored to the Nawab. In 1790 the Company again assumed the control of the country, and during this period, which is referred to by Mr. Wallace as the second assignment, the palayagars again held possession as renters under the Company. The palayagar during the period from 1765 to 1792 was the father of the istimirar zamindar. On his death in 1792 he was succeeded by the istimirar zamindar's elder brother of the half blood who died in 1801. In 1798 Mr. Wallace goes on to say that Chinnaya Mudali became the manager, and that a monthly allowance of Rs. 1,000 was made to the palayagar who also retained his allowance as kavalgar and his cumbatum lands. In an earlier letter of August 1801 (exhibit BU) Mr. Wallace had spoken of this Chinnaya Mudali as a mortgagee, There is no further evidence as to the terms on which he held. In the same letter (dated 30th May 1802, exhibit LIII) Mr. Wallace points out that whatever was the reason for the expulsion of the palayagars by the Nawab in 1765, it was, in fact, disregarded by the Company's Government for, as he says, 'During the assignments of the country the palayagars were restored to every degree of power which our temporary authority over the Karnatic and southern provinces admitted of our conferring in acting thus.' The fact' that the palayagar retained his position as kavalgur appears from other documents, e.g., exhibit I and II, dated, respectively, 1792 and 1797, as also from later documents. That he was not in actual possession of the palayam lands, but held his fort only when the Company took possession of the country in 1801 seams abundantly clear. But whit precise cause led to his deprivation and whether a temporary dispossession or an absolute forfeiture was intended by the Nawab is matter for conjecture. What is clear is that on both occasions when the Company had the power to do so they reinstated him in possession as renter, and when Chinnaya Mudali was in possession for a short time, the palayagar received an allowance and also retained throughout the office of kavalgar with its emoluments.

3. Some stress is laid on the way in which the palayam is dealt with in the treaties of 1787 and 1792. In the latter treaty it does not. appear in the list of estates, the peishcush of which is by the fifth article assigned to the Company, It is mentioned in the second schedule containing a list of the districts, the management of which the Company was in certain events authorised to assume. Then it is associated with Trichinopoly, the phrase being 'Trichinopoly including Worriorpollium and Arialore.' It will be seen from the language of Mr. Wallace's letter of 10th August 1801 that at that time palayam was not considered part of the district of Trichinopoly. It would have been a strong point in favour of the defendant if the palayam had been mentioned in the first schedule, and the omission of it is certainly a point to be noted against him. But the point is of no great importance because there is no certainty that the enumeration of the palayams given in the first schedule is an exhaustive enumeration. By the former treaty of 1787 palayams as well as other lands were pledged to the Company. That seems clear from Article 5, yet the schedule mentions no palayam by name except Worriorpollium, while it includes the provinces of Trichinopoly and Madura. If there were Palayama in Trichinopoly and Madura other than those mentioned in the first schedule of the second treaty, then it would seem that those palyama must have been intended to be included in the second schedule. Otherwise it must be supposed that the Company gave up in 1792 some of the security which they had under the earlier treaty, which seems highly improbable. Altogether, we do not think that the treaties throw any new light on the question. We know from other sources that in 1787 and 1792 the palayagar was not in actual possession. On the 31st July 1801 the final treaty was concluded with the Nawab, and a proclamation of even date announces to all zamindars, palayagars and kavalgars, etc., that the government of the country and in particular the right of collecting revenue has passed to the Company (exhibit T). In December of the same year, a further proclamation is issued dealing with be matter of disarmament and also announcing the indention of introducing a system of permanent assessment (page 584). Meanwhile Mr. Wallace had taken charge of the district of Trichinopoly (exhibit BM), and he writes several letters which are filed--the last dated in December refers to the fort occupied by the palayagar.

4. On the 2nd January 1802 Mr. Wallace announces the death of the palayagar, and after describing the unsettled state of the country ho concludes by asking for orders as to the manner in which he is to regard the palayagar's brother 'whether as successor to the claims of the deceased or not' (page 329), The answer to this letter from the Government is contained in a letter of 27 February 1802 referring to the abovementioned proclamation of December, dealing particularly with the question of disarmament, and in conclusion declaring the intention of Government to 'appoint the brother of the late palayagar of Udayarpalayam to succeed to that palayam on a zamindari tenure' and desiring that the usual sanad may be prepared and submitted. This, it is said, is in conformity with the principle of the Company's Government and agreeable to the recommendation of the Board (page 607). On the 8th March 1802 there is another letter from the Board to Mr. Wallace direct, informing him that the palayagar's brother is to be instated in the palayam as 'soon as a sanad of investiture can be prepared' (page 330).

5. From these letters it would appear that the intention at the time was to effect an immediate and complete reinstatement of the palayagar, the preparation of the sanad being regarded as little more than a formal condition. On 30th May 1802 Mr. Wallace writes the report which has already been mentioned at length. His opinion is in favour of restoration. That, in his view, is the policy which justice and expediency dictate, but he doubts the wisdom of immediate restoration, apprehending consequent want of security and protection to the people of the district. He proposes as a temporary measure a monthly allowance of Rs. 1,000 to the palayagar.

6. The proposal of Mr. Wallace is forwarded by the Board to Government with their approval (page 339). In July--in which month the regulation XXV of 1802 was passed-- the Government deal with the matter of the palayagara in a letter, dated the 17th (page 79). It begins by stating that any expectations entertained by palayagars must be founded on the presumed lenity and moderation of the Government and refers to the scheme of permanent settlement announced in the proclamation of the 1st December 1801 (page 584) and to the need for an inquiry into the value of the lands with a view to the commutation for military services formerly rendered. In the result it states that pending the necessary inquiry 10 per cent. on the net revenue of the palayam is to be paid to the palayagar. The purport of this order is communicated to the Collector in a letter of the 12th August 1802. The allowance: of 10 per cent. with arrears from the date when the Karnatic was coded to the company was sanctioned; and from that time the palayagar must have received the allowance remaining also in charge of his kaval duties. No change took place till 1814 when the question was re-opened by the Collector and the Board. The proposal than made is to grant to each palayagar a jaghire bringing in an average of 33 per cent. of the average gross collection, and to be assessed in the sum of a hundred pagodas as a nominal rent. The Collector is instructed to ascertain the views of the palayagars. At the same time it is said that the Board does not mean to depart from the intention communicated to the palayagars, i e., the intention to restore them to the management of their palayama under a new arrangement.

7. The Collector's report announcing the palayagar's consent is dated the 8th September 1814 (page 602). Before March 1816 another proposal seems to have been made, for, in that month the Government sanctions the plan by which each palayagar was to have a cusbah yielding 10 per cent, of the gross collections, and it is stated that the palayagars had assented to the plan (page 85). In December 1816 the Collector sends to the Board a report and asks for further instructions as to Udayarpalayam. In this report he mentions that the palayagar had been receiving star pagodas 8,117-33-32, of which 4,073-24-10 were received on account of kavali maniems and cannevery. On the 2nd January 1817 the Board gives the required instruction?, directing that the value of the villages to be given over to each palayagar is to be equal to the average gross amount of the palayagar's income from whatsover source derived, In this letter it is expressly said that the villages were to be given on zamindari tenure, the idea of a jaghire having been abandoned. These instructions being approved by Government, a conditional sanad was at last granted on the 83rd December 1817 and the palayagar was put in possession.

8. Before dealing with the questions which arise on the proceedings of Government between 1802 and 1817, it may be convenient to narrate the events which happened after the granting of the sanad, taking, first, proceedings other than suits. For, reliance is placed on these facts as indicating the manner in which the estate was treated alike by the authorities and by the members of the zamindar's family.

9. In May 1823 the Board directs the Collector to send up a report, giving a list of all the ancient zamindaris in his district, not including those created in conformity with the principle of permanent settlement, 'but only such as are held by the representatives of ancient samasthanamas whether now known by the name of 'zamindars, palayagars,' &c;, (page 608) and in reply the Collector names Udayarpalayam, and describes it, according to a tabular form (page 610). It may have been a mistake on the Collector's part---though a mistake as to so recent an event is not likely--but it does not appear that the mistake was corrected, and we find (exhibit X) that in December 1821 the Collector had been asking for and presumably had not received grant, parvana or sanad relating to the zamindari which the zamindar was able to furnish (page 198). In August 1835 the istimirar zamindar dies. The Collector reports the fact to the Board and the recognition of his eldest son. He also informs the new zamindar that a day has been fixed for the installation, and that directions have been given with regard to the honours to be paid by the devastanams (page 199). The Collector's proceedings are confirmed by the Board. In the same month of August an arzi was sent to the Collector complaining of the order passed by the Collector, and alleging that the petitioners, viz., the younger brother of the new zamindar, the plaintiff's father and his mother, were entitled to the zamindari, inasmuch as they had set fire to the corpse of the istimirar zamindar. A custom to that effect is alleged; it is not stated in what manner the petitioners are entitled to enjoy the zamin, and nothing more is heard of the petition. The second zamindar died in January 1836, leaving an only son, an infant, on whom, in the Collector's opinion, the estate legally devolved, In June the Collector recommends that the estate be taken in charge of the Court of Wards, assigning as one reason the hostility of the two brothers above mentioned. These brothers, he says, are entitled to receive some support from the estate, These recommendations are approved by the Board and by Government. And accordingly, on the 28th June, the Collector informs the elder of the two brothers what sum will be allowed for them, for their mother Oppayi and for plaintiff's grandmother. A further report on the matter was sent in August (page 355). In 1842 the third zamindar dies and his uncle, the elder of the two brothers, is recommended as his successor. He is accordingly put in possession of all the property (page 205).

10. Again, an arrangement is made for the maintenance of the other members of the family, including the younger of the two brothers and the plaintiff's father (pages 360, 342). Before this was done there appear to have bean petitions submitted by Oppayi and by Subbammal, both of which were rejected (pages 359, 204, 588, 589). In 1843, after the fourth zamindar had come into possession, he is adjured by the Collector to make a proper arrangement with Oppayi (page 207), and in 1850 and 1852 similar remonstrances are addressed to him with regard to his brother's maintenance.

11. The first litigation of which we have evidence arose from a claim made against the istimirar zamindar just before the sanad was issued. The plaintiff apparently was a member of a younger branch of the family, and he had previously, in 1812, claimed maintenance out of the 10 per cent. allowance made to the defendant. The actual claim was for a moiety of the same allowance, and it was rejected on the ground that the zamindari was one of those inheritances which, according to the usage and custom of the country, was not divisible into shares. This is the solitary instance in which such a claim has been made. In 1831 a suit was brought against the istimirar zamindar by Janaki, representing her son, for maintenance. The defence was the alleged illegitimacy of the plaintiff's father, but without trying this question the Sadar Adalat dismissed the suit on the ground that the zamindari was the self-acquired property of the defendant. In 1855 Subbammal, the third wife of the istimirar zamindar sued for maintenance, the defendant being the fourth zamindar. One of the defences was that the plaintiff had not been legally married, but the Sadr Amin allowed the claim on the ground that other widowed ladies in the family received maintenance (page 151). There was an appeal to the Sadr Court which was dismissed. In 1860 the plaintiff's father brought a suit against the fourth zamindar; there was an appeal and a second appeal, the result of which was that the Civil Judge was directed to find what amount of maintenance was payable and the decree finally made was confirmed on appeal by the Judicial Committee (page 169 and 214). The judgment in this appeal is put in by the plaintiff, apparently for the reason that it was assumed therein that the zamindari was the self-acquired property in the hands of the istimirar zamindar (page 112).

12. The last suit was brought in 1887 by Periasami, the plaintiff's older brother (page 233). Being a minor, he sued by his mother as next friend. By the sanction of the Court the matter was compromised on the terms that the defendant should pay for the support of the plaintiff and his two brothers the sum of Rs. 3,000, and for the future quarterly sums of Rs. 2,250 and a further sum of Rs. 30,000 for costs and past maintenance. The decree declares that the first defendant us belonging to the senior branch of the family and as heir according to usage shall possess the zamin and the property attached thereto. On the same day a release was executed by the mother on behalf of her three sons. This decree was executed and moneys due under it were received by the mother as long as Periasami was a minor and afterwards by Periasami himself till 1897. Periasami died in April 1897, and the present suit was filed in November. It will be observed that during this long period of 80 years, from 1817 to 1897, there is nothing in the action of the Government officers or of the members of the family to suggest that the estate was the partible property of an undivided Hindu family, while there is much to indicate that they regarded it as an impartible estate. There were during that time four successions to the zamindari and there were constant petitions, disputes and suits with regard to the amount of maintenance which the zamindar ought to allow to various members of the family yet in no case was a partition claimed, though the sons of the istimirar zamindar were living apart from, and were hostile to each other. The plaintiff's mother was advised in her suit (22 of 1886) by two of the most eminent Hindu lawyers in Southern India (now Sir Subrahmania Ayyar and Sir Bhashyam Ayyangar). It is difficult to believe that she would have agreed to the compromise and release effected in that suit on behalf of her son, and that none of the other members of the family would have claimed a partition during so many years, except on the supposition of a general belief in the family that the estate was impartible.

13. The arguments on both sides turned mainly on the effect of the action of the authorities between 1801 and 1817, and two questions were discussed. What was the intention of Government in 1802 and was there any change of that intention in 1817? It is argued that if in 1802 it was intended to restore the palayam as it stood in former times, there was in later years a change of mind on the part of the Government, and the final resolution at any rate was to create a perfectly new estate. Whatever may have been the intention of Government in 1802 with regard to the question of impartibility, we can find nothing in the evidence to justify the idea that there was any such charge of intention as is suggested. The determination of Government had been communicated to the palayagar, probably in the course of the year when it was formed. From that determination the. Board expressly declares that there was no intention to depart. It was only after consultation with the palayagar that the plan conceived in 1.814 was to be worked out, and as we have seen, the final arrangement was made with palayagar's assent (page 85). The professed object of the Board was to give the palayagar an 'equivalent to the benefit expected to be derived under the zamindari tenure.' Instead of being put in possession of a large tree's of country which, as the Board feared, the palayagar would not be competent to manage and having to pay a proportionately large peishcush, he was to have a smaller territory charged with a nominal rent only. There was certainly a change in the mode in which the resolution of 1802 was to be carried into affect, but it was a change made with the palayagar's consent, and otherwise the resolution was allowed, to stand. The fact that some of the villages included in the old palayam were not included in the zamindari is, in this view of the case, immaterial. They were excluded because the palayagar agreed to give them up in consideration of easier terms in regard to peishcush. When it is objected that the palayagar was accepting the equivalent of only 10 per cent. in lieu of the 33 per cent. which, if the whole palayam had been restored on the ordinary terms, he would have received, it must be remembered that out of the 33 per cent. the zamindar would have had to meet the expenses of management of the whole palayana and also take the risk of bad seasons, being at the same time always chargeable with the 66 per cent. payable to the Government, amounting to about a lakh of rupees, Evidently it was thought that when these things were taken into account the zamindar would not receive much more than 10 per cent. net (page 80), for, the Board on the 12th May 1814 say that a jaghire bringing in something more than their present allowance would be sufficient. It is clear that the Board as far at least as their expressed intention went, did not mean that the zamindar should be worse off pecuniarily than he would have been if put in possession of the whole palayam. In the result the villages included in the sanad were estimated to yield a sum slightly exceeding the amount which the palayagar had been receiving on account of the 10 per cent. and in addition were included villages sufficient to being in a sum equal to the average annual amount of the kaval collections.

14. There is nothing, as far as we can see, in the terms of the sanad to justify the idea that anything beyond a settlement was in contemplation. The reference to 'former privileges' probably bad regard to the kaval fees hitherto enjoyed by the zamindar, and perhaps also to the lands 'relinquished' by him in accordance with the Government order of the 29th March 1816 (page 85). Except for this reference the instrument is not materially different from that which was given in the Devarakota Case L.R. 17 IndAp 134; I.L.R. 13 Mad. 406. The operative part of the instrument beginning with the third paragraph merely declares the permanent annual jamma which has been fixed on the zamindari.

15. No evidence is adduced as to the reasons for the delay in effecting a settlement with the palayagar. It is not shown that anything occurred to make the Government alter its mind. It can only be inferred that, having regard to the condition of the country and perhaps the character of the palayagar, the authorities did not think it prudent to lay upon him such a large responsibility as the possession of the whole palayam assessed in the ordinary way would have involved. The inclusion of villages on account of the kaval fees theretofore enjoyed is not a fact which can be used against the zamindar. The functions of kavalgar had been attached to the office of palayagar, and he had been remunerated by fees or lands. The Government might have resumed the lands or withheld the emoluments and dispensed with his services. Their recognition of the zamindar as kavalgar up to 1816 and the compensation made to him shows the desire of Government that the zamindar's pecuniary position should not be prejudicially affected.

16. Going back to the circumstances in which the resolution of 1802 came to be made, we have now to consider whether at that time the Government had it in mind to alter the incidents of the palayagar's tenure as between himself and the members of his family. The principles of the Company's Government in obedience to which the Government acted in regard to the palayagar included the cessation of the military service formerly required by the palayagars, the assurance of immunity and of security of tenure to the palayagar and other inhabitants and the establishment of a system of permanent assessment. On those principles the Government asserts that it intends to act notwithstanding that in their opinion the palayagar could not claim such treatment as a matter of strict right. It must be remembered that according to the view then entertained the tenure of zamindaris generally was regarded as scarcely conveying any idea of property in the soil (see paragraph 4 of instruction to Collector, page 318, 5th Report, and also preamble to Regulation XXV of 1802; Marungapuri Case L.R. 1 IndAp 287.

17. We, however, find that the Company's Government consistently and continuously admitted the claims of the palayagar as a matter of justice, if not of strict legal right, When they had temporary authority during the two assignments they had restored the palayagar to all the power and authority in the palayam which, at the time, they could give, When Chinaaya Mudali was temporarily in possession (under circumstances which are not explained), they secured him an allowance of Rs. 1,000 per mensem, and 'from the day the Karnatic was ceded to the Company' he was paid 'an allowance of 10 percent. on the net revenue of his palayam' (exhibit Z).

18. The allowance of 10 percent. on the net revenue is consistent with the view that the palayagar's right was acknowledged in fact, for that was the usual allowance made to palayagars or other ancient landholders during the pendency of an enquiry as to the amount of peishcush which should be charged on their estates permanently and entered in the sanads which were then being prepared for all estates in order to carry out the policy of the permanent settlement. This appears from paragraphs 41 and 42 of the instructions above mentioned (page 327, 5th Report). If immediately after the order of February 1802 the palayagar had been put in possession and a sanad issued under the Regulation of that year, and still more if, as in the Hunsapore Case 12 M.I.A. 1 no sanad has been issued, it could hardly be suggested that there was any intention to alter the impartible character of the estate. The exemption from military service and the granting of a sanad certainly could not be deemed to indicate such intention. What difference then can it make that the palayagar, not being put in actual possession was for fifteen years after the intended restoration bad bean announced treated as a landholder with whom a settlement had yet to be made? The argument on the plaintiff's behalf must he that the withholding of possession justifies the inference that the Government intended to alter the character of the estate or make a new grant. With that argument we have already dealt, To us it appears more reasonable to bold that the Government, recognizing the claims of the palayagar, and intending ultimately to give full effect to them, never considered the question of impartibility, and therefore must be taken to have intended that, except so far as the tenure might be altered by the sanad, the prior state of things should continue. The Nuzvid Case L.R. 7 IndAp 38 on which reliance was placed, is distinguishable from the present in more than one respect. There, for the period between 1793 and 1802, no member of the family was in possession; apparently their rights were altogether in abeyance; it is not stated that any allowance was received by any of Narayy's sons, In 1802 six pergannahs, being only a small part of the original zamindari, were granted to the second Ramachandra while the larger part of the zamindari was granted to the eldest son in whose hands the whole zamindari had bean in 1793. Obviously in this case Ramadhandra took a new estate, though it might have been otherwise with the eldest son as to whose case the Judicial Committee refrained from expressing any opinion. In addition, there was evidence of conduct subsequent to 1802, indicating the opinion prevailing in the family, whereas in the present case all the evidence of that kind points to the opinion that impartibility is the rule. This latter observation also applies to the Merangi Case L.R. 18 IndAp 45; I.L.R. 14 Mad. 37. There a complete break in the possession of the family had lasted from 1760 till 1795, when Gangaraz, a member of the elder branch of the family, was put in possession. Beyond that fact there was nothing on which to found the conclusion that the Government had in view the creating of an impartible zamin-dari--Zamindar of Merangi v. Sri Rajah Satrucharla Ramabhadra Razu L.R. 18 IndAp 45; I.L.R. 11 Mad. 380. And there was evidence relating to what happened in 1835 which, in the opinion of the Committee, clearly negatived any such intention. Much the same argument seam to have been used in the Ramnad Case (1) as were used before us. There also Mangaleswari, in whose favour a formal declaration was made in 1795, was not put in possession for some years and then only when she had executed a nauchalka. There was not even any evidence that the Company had paid her the net profits of the estate for the period during which it continued in their management. Mr. Justice Muttusami Ayyar considered that these circumstances did not serve to show that the quality of impartiality was intended to be affected. There was in that case a change of tenant, and the military character of the tenure was of course abolished; there was also from the first an intention to fix a permanent peishcush. But Mungaleswari was recognized as successor to the palayapat and no Dew estate was granted Mr. Justice Muttusami Ayyar's observations hold equally good as applied to the present case, though, no doubt there were other circumstances in the Ramnad Case Appeal No. 89 of 1891 (unreported)- see post, p. 613 on which the judgment was rested.

19. Taking all the evidence together up to the date of the issue of the sanad, we are unable to agree with the conclusions at which the District Judge arrived. Nor can we accede to the contention that the case must be treated on the footing that the palayam was wholly lost to the palayagar'a family before 1801 and that accordingly an entirely now grant was made in 1802 There is no evidence of any definite confiscation of the estate by the Nawab, and the conduct of the Company before 1801 shows that, so far from holding that a confiscation had taken place, they did their best to give effect to the palayagar's claims, In February 1802 the resolution of Government is explicit--the late palayagar is to be succeeded in the palayam by his brother--and from that time the latter received what was supposed to be the net income of the estate with arrears 'from the day the Karnatic was ceded to the Company' (exhibit Z, paragraph 19), There was, in effect, a restoration of the estate, and unless it can be said that that act was cancelled by the subsequent proceedings of Government and a forfeiture was suffered, we fail to understand bow the villages ultimately included in the sanad can be said to have been granted as a mere matter of grace in 1817. We have already given our reasons for holding that the change of mind on the part of Government did not go the length of amounting to a cancellation of their resolution of February 1802 or to a confiscation of the estate. In our opinion the question of impartiality must be decided in no other way than it would have had to be decided if a sanad had been granted on the ordinary terms in 1802. Regarding the question in that way, considering the evidence as to enjoyment of the old palayam, and the evidence as to what has occurred with regard to the enjoyment of the zamindari since 1817, we think it is sufficiently proved that as the. old palayam was impartible so it was intended that the zamindari should be impartible.

20. The plaintiff, however, contends that even if the zamindari is impartible, he is entitled to succeed Kalyana Rangappa, the fourth zamindar who died in 1885, in preference to the first-defendant who, in fact, succeeded him. The relationship of the parties is shown below:--

Istimirar Zamindar.



| | |

First wife Second wife. Third wife.

(no issue.) | |

| |

_________________________________ |

| | |

Kulyana Rangappa, Prasanana Vijaya Rangappa,

Fourth Zamindar, Rangappa, died 1883.

died 1885. died 1868. |

| ___________________

| | | |

Muthu Vijaya, Periasami, Plaintiff. Second

died 1878. died April defendant.

| 1897.

First defendant.

21. The plaintiff's contention is that he, being a son of the fourth zamindar's brother, is, notwithstanding that he is a brother of the half blood, in a nearer class of heirs than the first defendant, who is a grandson of the fourth zamindar's uterine brother; and that, being in the nearer class, he is to be preferred to the first defendant, who is in a more remote class.

22. In support of this contention he relies on the decision of the Privy Council in the Tipperah Case 12 M.I. A. 523 and on the decision of this Court in Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai I.L.R. 17 Mad. 316 The short answer to this contention is that the Tipperah Case 12 M.I.A. 523 as has been already pointed out by this Court Subramanya Pandya Chohka Talavar v. Siva Subramanya Pillai I.L.R. 17 Mad. 316 was decided with reference to the law of the Dayabbaga, which does not recognize survivorship as determining the devolution of property, and is thus not applicable to this Presidency where the law of survivorship, as recognized by the Mitakshara, prevails, and is a determining factor in tracing the descent of impartible property in an undivided Hindu family. This was expressly laid down by Turner, C.J., and Muttusami Ayyar, J., in the case of Naraganti Achammagaru v. Venkatachalapati Nayanivaru I.L.R. 4 Mad. 250 where they relied on an earlier decision of this Court in Ramayya v. Ranganayakamma Appeal No. 28 of 1877 (unreported) and on certain observations of the Privy Council in the case of Katama Natchiar v. The Rajah of Shivaganga 9 M.I.A. 543. In the case of Naraganti Achammagaru v. Venkatachalapati Nayanivaru I.L.R. 4 Mad. 250 the competition was between a junior uncle of the last zamindar and a grandson of a senior uncle, and the latter was held to have the superior right, The Court laid down this broad rule: 'When impartible property passed by survivorship from one line to another it devolves not necessarily on the co-parcener nearest in Wood but on the nearest co-parcener of the senior line '(page 267)..

23. Applying this rule to the present case, it is clear that the first defendant is the nearest co-parcener of the senior line and therefore takes in preference to the plaintiff who belongs to the junior line. The plaintiff contends that a different principle was laid down by this Court in Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai I.L.R. 17 Mad. 316 but it may be doubted whether, under the principles there laid down, the plaintiff would have a preferable title to the first defendant for, in an undivided family, like the present, nearness of blood is immaterial, The principle of representation places the first defendant and the plaintiff in the position respectively of their grandfather and father, and therefore equally near to the deceased zamindar (apart from any question of the half-blood), and that being so, the first defendant being senior in age to the plaintiff would take the impartible property in preference to the plaintiff. However that may be, this Court in deciding the case of Subramanya Pandya Chokka Talavar v. Siva Subramanya Pillai I.L.R. 17 Mad. 316 did not overrule or dissent from the decision in Naraganti Achammagaru v. Venkatachalapati Nayanivaru I.L.R. 4 Mad. 250 and we think that we are bound by the latter decision which is in accordance with a still earlier decision of this Court.

24. We hold therefore that the first defendant is entitled to succeed to the impartible estate in preference to the plaintiff.

25. The plaintiff, however, contends that certain portions of the property claimed in the plaint are not included in the impartible estate, but are partible property to a partition of which he is entitled notwithstanding our decision in regard to the impartible estate.

26. With regard to the lands in schedule A attached to the plaint, the District Judge has held that they all form part of the zamindari, except the two villages (item No. 23) of Mavatiruppu and Vandayruppu. These were originally acquired by the istimirar zamindar, and the District Judge finds that two-thirds of these passed from zamindar to zamindar, and one-third was sold by order of the Court and passed from the family for a time, but was re-purchased by the fourth zamindar in 1878. In all cases the purchases were presumably made from the zamindari funds. The District Judge thinks that the one-third re-purchased by the fourth zamindar was intended to be incorporated with the two-thirds which had pissed from zamindar to zamindar, and he is of opinion that these two-thirds should be held to be partible property because the fourth zamindar in his suit to recover one-third from the purchaser in the Court sale treated the property as partible. We do not, however, think that this is a correct view. The zamindar first claimed the property as part of his zamindari, and it was only when this claim was disallowed that he tried the other plea and treated them as partible. The original plea of the zamindar is certainly as likely as his later plea to be correct. The onus lies on the plaintiff to show that the property is partible. This we think he has failed to do. The manner in which the property was acquired and passed from zamindar to zimindar leads us to the conclusion that it, as well as the other property in schedule A, was part of the zamindari and passed with it to the first defendant.

27. Having found that the zamindari is impartible, and that there is no partible property, it is unnecessary to decide the questions-- which are, in the main, questions of law--which would arise if the estate were partible.

28. In view, however, of the possible result of an appeal to the Privy Council and with a view to prevent possible future litigation, we think it is necessary to record our finding as to the validity of the will of the late zamindar. On that issue the District Judge has unfortunately omitted to record a definite finding. The Judge finds that 'the zamindar knew what was in the draft and fair copy and approved them, though he was not the first to originate the idea of disposing of the property in the way he has dealt with it' (paragraph 106); that on the 20th June be must have had sufficient consciousness to know what he was doing and did know that he was signing a will (paragraphs 90 and 93). He rejects the evidence of Bhujanga Rao in so far as it states that the fair copy was not finished till the morning of the 20th. He believes the Deputy Collector's evidence and does not say he disbelieves Rangasami Ayyangar though he considers him not a very trustworthy witness. It is somewhat difficult to understand what doubt was left in the mind of the Judge, since it was not alleged and certainly not proved that the execution of the will, of which the testator is found to have known the contents, was obtained by undue influence. It need hardly be said that it is quite immaterial that the zamindar acted upon suggestions made to him by his friends and relations in framing the will, provided that he knew what he was doing and was not subjected to any improper influence. Apparently the Judge's suspicions were aroused by the language used by the Deputy Collector and the witness Rangasami in their two letters (exhibits K and M). It is suggested that Rangasami, while on the 16th writing to the Deputy Collector about some rumoured plot to get a will executed, was afterwards gained over by the plotters and induced to assist in obtaining the execution of the will signed on the 20th. There is no evidence to support this suggestion, and it is quite inconsistent with the conduct of the witness Rangasami in taking the will to the Deputy Collector for his criticism. If Rangasami is to be believed as to what took place in the zamindar's presence and elsewhere on the 18th and 19th June, it is perfectly clear that the will was approved by the Zamindar, Indeed, the Judge finds that to be the case, but he does not observe how Rangasami is corroborated by the Deputy Collector. We accept the evidence of Rangasami as to those events. It is not suggested that there is anything in the dispositions of the will to justify suspicion. On the whole we are of opinion that the issue as to the will must be found in the first defendant's favour.

29. The plaintiff can have no claim to the property acquired by the fourth zamindar. It was disposed of by will, and that will we have found to be valid.

30. Lastly, the plaintiff claims that if the estate is impartible, and if first defendant is entitled to hold it, he (the plaintiff) ought to get an allowance for maintenance of Rs. 2,000 per mensem and Rs. 10,000 for marriage expanses. No argument was addressed to us with regard to the claim for marriage expenses. The District Judge considered the claim for maintenance was exorbitant and allowed the plaintiff Rs. 250 per mensem, that being one-third of the sum allowed for the plaintiff and his two brothers under the compromise in Original Suit No. 22 of 1886. The first defendant objects to this sum as excessive. He wishes it to be reduced to Rs. 150, but we think that it is a reasonable sum to allow for the reasons stated by the District Judge in paragraph 74 of his judgment.

31. The result of these findings is that the appeals are all allowed and the suit is dismissed, except so far as regards maintenance payable to the plaintiff by the first defendant. Plaintiff will have a decree for this maintenance charged on the property in schedule AI, including arrears from the date of the plaint payable according to the dates in exhibit XXXII(e). Plaintiff must pay all the cost of the litigation, except on the amount of maintenance recovered by him in Appeal No. 114 of 1899. He is entitled to costs on this amount from the first defendant. Subject to the above exception all the appeals are allowed with costs.

32. The appeals were posted again on the 2nd May 1901, to be spoken to.

33. S. Srinivasa Ayyangar for appellant, contended that as a result of the judgment the memorandum of objections should have been dismissed with costs.

34. The Advocate-General (Hon. Mr. J. E. P. Wallis), for respondent No. 2, argued that the defendant No. 2 was also entitled to a decree for maintenance in the suit He should not; be driven to a separate suit. The rights of the family were adjudicated upon, and the Court could award maintenance to the members of it. On the finding that the estate was impartible, the defendant No. 2 would be entitled to maintenance as well as the plaintiff.

35. S. Srinivasa Ayyangar, in reply, contended that as the suit for partition had bean dismissed, no decree in favour of a defendant could be made. The plaintiff really united three suits--for partition, ejectment and maintenance. The two former having been dismissed what remained was only a suit for maintenance by one member of a family to which defendant No. 2 may not be a necessary or proper party. No decree for maintenance could be made in favour of a defendant, and the whole suit except the claim for maintenance was dismissed. Had the claim for partition been successful, the rights of each member would have been ascertained and relief could then have been given to defendants as if they had been plaintiffs.

36. The plaintiff's memorandum of objection is dismissed. Include as costs payable by the plaintiff the costs on Rs. 6,180-11-3, being the costs incident to the first and second grounds of the memorandum of objection.

37. The Advocate-General, on behalf of the second defendant, asks to have included in the decree a provision for the maintenance of his client.

38. Such provision can no doubt be made in a decree for partition, but in the present case the plaintiff has failed in his claim to recover the whole zamindari as against the first defendant, and the case is not one in which a decree in favour of one defendant can be made against another. Of course, the second defendant is not precluded from making any claim for maintenance which he may have.

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