1. In this case the plaintiff is a daughter of one Pedda Tippayya by his first wife and sues for the recovery of the properties mentioned in the schedules attached to the plaint. Pedda Tippayya had a brother named Chinna Tippayya and had married a second wife, Lakshmakka, who was only about ten years old at his death. She died in February 1905. The plaintiff's case is that Pedda Tippayya and Chinna Tippayya were divided in interest and that they effected an actual division of the moveable properties and the houses, but that the other properties remained in the joint enjoyment of both at the time of Pedda Tippayya's death in 1868. The plaint alleges that Lakshmakka, the widow of Pedda Tippayya took possession of his properties after his death in 1868 and that the 1st defendant, who joined Lakshmakka and was looking after her properties took possession of them on her death in 1905 and that he is wrongfully withholding it from the plaintiff. She denies that the 1st defendant who claims to have been adopted by Lakshmakka, was really adopted by her and that Lakshmakka had any authority to adopt him. The 2nd and the other defendants are made parties on the ground that they are in possession of some of the properties without any lawful title.
2. The 1st defendant contends that Pedda Tippayya and his brother Chinna Tippayya were undivided and that all the family properties devolved on Chinna Tippayya on the death of his brother, that Pedda Tippayya a few days before his death gave authority to Lakshmakka to make an adoption to him and that Chinna Tippayya also give authority to Lakshmakka to adopt any one of his own sons execept the first in the event of his begetting sons, or otherwise any other boy.. The 1st defendant further contends that Chinna Tippayya also agreed to give a half share of the properties to Lakshmakka and that subsequently the properties were divided. He further contended that he was adopted by Lakshmakka in the year 1881 and that he had since been in enjoyment of the properties obtained in the division in his own right as of other properties acquired by him subsequently apparently out of the income of the properties obtained at the division.
3. Issues were framed as to the question of the status of the two brothers, as to the capacity in which Lakshmakka took a half share in the properties as to the factum and validity of the adoption of the 1st defendant, as to limitation and as to the properties the plaintiff would be entitled to recover in case she was entitled to succeed as reversioner after the death of Lakshmakka.
4. The Lower Court held that the brothers were undivided in interest at the death of Pedda Tippayya, that there was no adoption in fact and that even if there were, it was invalid as the widow Lakshmakka had no authority to adopt. It also held that Lakshmakka held the half share allotted to her at the division absolutely, its view being that Lakshmakka must be taken to have obtained it as a gift from Chinna Tippayya. We agree with the District Judge that it is not proved that there was any division between the brothers before Pedda Tippayya's death.
5. Their Lordship's here discussed the evidence in support of the above conclusion. Ed.
6. We have now to consider the 2nd issue 'In what capacity did Lakshmakka, the widow of Pedda Tippayya, take a half share in the property?' The learned vakil for the appellant contends that she took only a widow's interest in it as the representative of her husband Pedda Tippayya and that the plaintiff as his daughter was entitled to succeed to it on the death of Lakshmakka. The learned Advocate-General on the other hand contends that as the two brothers were undivided in interest and the property passed by survivorship to the junior brother, Lakshmakka must be taken to have obtained the half share purely as a bounty. He contends that on the correct construction of Exhibits IV and XVI what she took was a gift from her brother-in-law and that, even if under those documents she was intended to have only a life-interest, her right cannot be taken to be a widow's estate descendible to the reversionary heirs of her husband and that on her death the reversion would pass to Chinna Tippayya or his heirs and that the plaintiff in any event has no right to succeed to the property. If Lakshmakka was promised an absolute right to the half share under Exhibit IV or got it subsequently by division between her and Bhagamma, the plaintiff, is of course out of Court, as she is only a step-daughter of Lakshmakka. In our opinion, Exhibits IV and XVI must be taken together in order to determine the right acquired by Lakshmakka in the half share of the family property; and taken with the circumstances of the case we have no doubt that the intention of the parties was that she was to have the half share as the representative of her deceased husband. If she validly adopted a boy, this share whould pass to him; otherwise she would continue to hold it. She was no doubt not entitled to partition as the widow of a deceased co-parcener. But it seems to be clear that it was the intention of Chinna Tippayya to treat her as if she was entitled to such a share. For what reason he did so it is immaterial; to consider. If Chinna Tippayya could in law validly give her a widow's interest we feel no doubt that her half share must pass to her husband's reversioners and the plaintiff being the nearest reversioner would be entitled to succeed. The learned Advocate-General contended that a woman's estate could be obtained by a Hindu family only by inheritance, that such an estate cannot be created by contract of parties or by a grant. We are unable to agree with him. It is not denied that a Hindu female is capable of possessing two different kinds of estate passing by different rules of inheritance, namely a woman's estate, with respect to which she does become a stock of descent and which passes after her death to her husband's heirs and an absolute estate which passes to her own heirs, i.e., the heirs to a woman's peculium. It has been decided by the Judicial Committee of the Privy Council that a woman's estate may be created in favour of a daughter by contract (see Radha Prosad Mullick v. Ranimoni Dasi I.L.R. (1908) C. 896 and Karmi Uddin v. Gobind Krishna Narain And in determining the character of the estate taken in any particular case the rule enunciated in Mahomed Shumshool v. Shevukram (1877) L.R. 2. IndAp 7 must be borne in mind that 'in construing the will of a Hindu it is not improper to take into 'consideration what are known to be the ordinary notions and wishes of Hindus with respsct to the devolution of property. It may be assumed that a Hindu generally desires that an estate especially an ancestral estate shall be retained in his family; and it may be assumed that a Hindu knows that, as a general rule at all 'events women do not take absolute estates of inheritance which they are able to alienate.' That such an estate could be created is assumed in Sambasiva Ayyar v. Viswam Ayyar I.L.R. (1907) M. 356 and Samhasiva Ayyar v. Venkataswara Ayyar I.L.R. (1907) M. 179 though the learned Judges did not agree on the construction of the particular instrument in the case as to whether it created a widow's estate or an absolute estate. It has also been decided that property could be given to a Hindu male with the incidents of ancestral property in which his sons would acquire a right by birth (See Subbarayar v. Subbammal I.L.R. (1900) M. 219 Sudarsanam Maistri v. Narasimhulu Maistri I.L.R. (1901) M. 149 Per Bhashyam Ayyangar J., Seth Jaidial v. Seth Sita Ram (1882) L.R. 8 IndAp 227 and Munisami Chetti v. Marudammal (1910) 20 M.L.J. 687. We do not think that the observation at page 465 in Anandrao Vinayak v. Administrator-General of Bombay I.L.R. (1895) B. 450 relied on by the learned Advocate-General throws any doubt on the possibility of such an estate being created. In Timmana Charya v. Balacharya 4 Bom. L.R. 257 and Bai Diwali v. Patel Bechardas I.L.R. (1902) B. 445 there are observations to the effect that a stranger cannot give property to a Hindu impressing it with the character of ancestral estate. But assuming these observations to be well-founded, they do not touch the present case where instead of an allotment for maintenance being made to Lakshmakka she is treated by her husband's co-parcener more generously and is given a half share of the property which her husband would have got on partition. The Advocate-General contended that to allow parties to create such an estate would enable them indirectly to contravene the provision of law that they cannot by grant create rights of property in favour of unborn or unascertained persons and he relies on the decision in Nistarini Dassi v. Nundo Lal Bose I.L.R. (1902) C. 369 that went on appeal to the Privy Council in Binode Behari Bose v. Nisturini Dassi I.L.R. (1905) C. 180. It was no doubt held in that case that a gift by will to the testator's reversionary heirs, whoever they might be after the death of his widow would be void. But it is no authority for the position that an estate known to and sanctioned by the Hindu Law cannot be granted in favour of a Hindu female simply because the succession would pass on her death by law to her husband's heirs and ,not to the heirs to her Stridhanam property. The heirs in such a case do not take under the grant itself but under the rules of law determining the line of inheritance to a particular kind of property held by the female owner. It has been decided that in the case of followers of the Marumakathayam law, a conveyance may be made to a woman with the incidents of tarwad property so as to give a right to her unborn childern (See Kunhacha Umma v. Kutti Mammi Hajee I.L.R. (1892) M. 201 Mooriyat Peetikayil Kunhamina v. Mooriyat Peetikayil Kunhamli I.L.R. (1908) M. 315 Kabankandi Koma v. Sivasankarm (1909) 20 M.L.J. 134. The Advocate-General's argument is really answered by the Privy Council In Rai Bishen Chand v. Mussumut Asmaida Koer (1883) I.L.R. 6 A. 560 (P.C.). There a Hindu executed a deed of gift of property in favour of his grandson and his brothers 'who may be born hereafter.' This gift was impeached as void on the ground that it was a gift to a class of persons some of whom were net born at the time of the gift. After deciding that the gift would take effect in favour of the grandson actually then existing, their Lordships observe as follows.
Now, in such an arrangement it would be quite consistent with Hindu ideas of ancestral property to express a desire that the whole generation into which the property was transferred should benefit by it. Indeed in the case of a partition between father and sons it is laid down in the books that if a son born after the partition of ancestral estate does not out of the residue of his father's estate get a share equal to what his brothers had obtained, the other brothers must contribute to a share out of their portions. This rule is to be found in the Dayabhaga Chap VII. Sections 10, 11 and 12, which is a Bengal authority, but it refers to Vishnu and Yajnyavalkya authorities on which the Mitakshara is founded. Indeed, the principle of joint family is not less closely, but more closely, insisted on by the Benares school than by the Bengal School of law. But their Lordships are not now affirming the law on this point, nor are they deciding or prejudicing any question which may arise between Satru jit's heirs on the one hand and his brothers, if any should be born, on the other. They are only showing that the notions present to the mind of the head of a Hindu joint family who is making a family arrangement, are something very different from the notions present to the mind of an English testator when he makes a gift to a class.
7. It has moreover been held that a Hindu female may by prescription acquire property impressed with the character of a widow's estate if the title she asserted during the time of prescription was that of a widow holding as representative of her husband. (See Bapanayya v. Peddi Chalamaiya (1898) 9 M.L.J. 33 Sri Raja Lakshmi Devi Garu v. Sri Raja Suryanarayana Dhatrazu Bahadur Garu I.L.R. (1897) M. 256. It is unnecessary to consider whether a mere stranger can give property to a Hindu, widow with the incidents of a widow's estate descendible to her husband's heirs. We think there can be no doubt that in circumstances like the present such an estate could be created. It amounts practically to nothing more than an allotment to Lakshmakka of a large share of the family property amounting to what her husband would have got at a partition instead of giving her a smaller portion which would be sufficient for her maintenance. We therefore hold that plaintiff is entitled to the properties of Lakshmakka.
8. The Lower Court has recorded no finding on the 5th issue. It will be requested to do so now after recording the evidence that the parties may adduce. The finding should be submitted within two months. Ten days will be allowed for objections.
9. In compliance with the order contained in the above judgment, the District Judge of Cuddapah submitted thefollowing finding. Ed.
My finding on the 5th issue, which is the only issue on which I have been directed to record a finding is that the plaintiff is entitled to recover all the items claimed in Schedule A, all the items or the value thereof in Schedule B except 4, 5 and 17 which are said not to exist; and I disallow item No. 25 and allow only one buffalo as regards item No. 26; and all the items in Schedule C except item No. 1 which is reduced to Rs. 250 instead of Rs. 500 as stated by the 1st defendant and item No. 11 which is denied by the defendant to exist.
Plaintiff has put in a petition to amend the plaint as regards the number of a certain field which is wrongly put down as No. 69 which ought to be 95. The other side has contended that as the case is pending in the High Court I have no right to order that amendment. I accordingly leave it for the orders of the High Court.