Subba Rao, J.
1. This is a second appeal against the decree and judgment of the District Judge or Krishna modifying that of the Subordinate Judge of Masulipatam in O. S. No. 11 of 1943. Plaintiff is the second wife of one Kottayya. By a registered partition deed, Ex. D-1, dated 6-7-1923 Kotayya and his son Venkataratnam (the defendant), by his first wife partitioned the family properties. Under the said deed the 'A' marked schedule properties were allotted to Kotayya and the B marked schedule properties to Venkataratnam. It was also provided thereunder that Kotayya should only enjoy the income derived from the property allotted to him without powers of alienation and that alter his death if sons had been born to him they should take it absolutely and in case he had no male issue, it would go to Venkataratnam. In the happening of the second contingency the document directed Venkataratnam to give maintenance to the plaintiff at the rate of one putti of paddy per year. The aforesaid 'A' Schedule land was service inam land situated in the village of Chora-gudi. In or about 1869 the Government resumed that inam and conferred a ryotwari patta on the ancestors of Kotayya. In 1922 the Government decided that the land was zamindari land and cancelled its order of resumption. After this Kotayya paid Nazarana to the zamindar and obtained Patta from him in the year 1928. On 4-9-1941, Kotayya executed a gift deed, Ex. p-4, in favour of the plaintiff in respect of the said property. Kotayya died in 1842 and the defendant took possession of the property shortly thereafter. The plaintiff filed O. S. No. 11 of 1943 for a declaration of her title and for possession of the suit properties. Alternatively she claimed maintenance at the rate of 4 putties and 8 tooms of paddy per year. The plaintiff's case is that after the Government recognised the zamindar's right in 1922, the zamindar resumed the lands and conferred a new title on Kotayya for consideration and, therefore, the gift-deed in her favour was valid. Alternatively though this was not raised in the pleadings it was contended in the Courts below that a boy was born to her, that he died on the next day and that she succeeded to him as his mother. She also pleaded that the clause in the partition deed conferring a title on the defendant was repugnant to the absolute interest conferred on her husband and was therefore void. The defendant contended that as the plaintiff had no children he became the absolute owner of the properties under Ex. D-1, subject to the maintenance. The learned Subordinate Judge held that a son was born to the plaintiff and that but for the occurring of that contingency, the property would have devolved upon the defendant. He found that the patta conferred upon Kotayya by the zamindar was only in recognition of the pre-existing rights in the family and did not create a new title in him. He was also of the view that the maintenance fixed under the document was rather Inadequate but that the reasonable rate would be 2 putties per year. Pursuant to the aforesaid finding he gave a declaration that she was entitled to a life estate in the suit properties and directed possession of the suit properties. The defendant preferred an appeal to the District Court, A. S. No. 193 of 1945. The learned District Judge on the evidence found that the child was only a still-born one. He agreed with the Subordinate Judge that the partition deed was valid and that Kotayya did not acquire a fresh title by the patta issued by the zamindar. As he held that the child was not born alive, he modified the decree of the Subordinate Judge and gave a decree instead for maintenance. The plaintiff has preferred the above second appeal.
2. The learned counsel for the appellant raised before me the points his client had unsuccessfully pressed before the Court below. The learned Counsel argued that the clause in the partition deed restricting Kotayya's right to dispose of the property by gift or sale was repugnant to the absolute title conferred thereunder. To put it in other words he said that under the partition deed the property to which Kotayya was absolutely entitled was allotted to his share and that the subsequent clause restricting his right of alienation is in derogation of that right and therefore void. Thougri Ex. D-1, is styled a partition need, it was really a settlement deed executed between the father and son having regard to the circumstances then obtaining in the family. As already stated, the defendant was Kotayya's son by the first wife, When Kotayya married a second wife, presumably, tlie defendant pressed for his share. Kotayya was also anxious to make a provision for His children,-- it any, by his second wile and in case she had no children, to provide for her maintenance. The intention of the parties was effectuated by giving a life estate to Kotayya in respect of the A Schedule property and a vested remainder to the plaintiff's sons, if any, and if she had no sons, to the defendant. In the happening of the latter contingency she was provided with maintenance, A fair reading of the document, therefore makes it clear that no absolute interest was intended or as a matter of fact conferred on Kotayya, The relevant words are,
'It has been settled that the said Kotayya shall throughout his lifetime enjoy only the income from the A marked property without having powers of disposition by way of gift and sale therein.'
The words are clear and unambiguous and confer only a life estate on Kotayya. I therefore hold that the clause restricting the alienation is not in derogation of an absolute grant but is a condition of the grant itself.
3. It was then contended by the learned Counsel that the issue of a patta in favour of the plaintiff's husband created a new root of title. The question therefore is whether the Zamindar by issuing a Patta recognised the preexisting rights of the family in the property, as contended by the respondent, or resumed the lands and created a new title for the first time in favour of Kotayya. If it is the former, Ex. D 1, would operate on these properties and the title to the properties would be governed by its provisions. II it is the latter, the gift deed in favour of the plaintiff would be valid. Before considering the evidence in this case it is as well that I briefly notice the law on the subject which is fairly well settled. Resumption consists in putting an end to the grant under which lands are held remitting the services. Vide 'Rajaharaje Bommarauze Bahadur v. P. Venkatadri Naidu' 7 Moo Ind App 128. On the exercise of the right of resumption, the zamindar may recover possession of the land. If the land itself had been the subject-matter of the grant or if the grant was only of the melwaram in whole or in part and the grantee had been in possession before such a grant, he may put an end to the beneficial tenure and impose full assessment, but before he could exercise his right to resume or take possession of the land, he must establish his right to resume and evict the person in possession of the land. That depends upon the nature, extent and terms of the grant. In 'Siyyadi Gam v. Visweswara Missanka' 18 Mad L T 142 the question was whether the zamindar was entitled to resume and recover possession of the lands granted to the defendants for discharging personal services such as for carrying the zamindari palanquin. The learned Judges held that the burden was on the zamindar to show that he had a right to evict. At page 144 the learned Judges say : 'Resumption means no more than a taking back of that which was once given, and therefore the plaintiffs cannot succeed in evicting the defendants unless they are able to show that what was originally granted was not merely a slice of the melwaram or landlord's share of tbe produce but the land Itself.'
A Full Bench of the Madras High Court considered the rights of a zamindar to resume a pre-settlement grant in 'Rajah of Visianagaram v. Appala-sami' 59 M.L.J. 183. Kumaraswami Sastri, J., who delivered the judgment on behalf of the Pull Bench pointed out that there was a' distinction between a grant burdened with service and one made in lieu of wages and that in the former Case the grant could not be resumed without at least showing that the services were required to be done and were refused. The Full Bench also laid down the following two propositions (1) where a zamindar wants to resume land granted before the Permanent Settlement and held by the grantee, from father to son, the onus is always on the plaintiff, (2) where the question is as to the class to which a specified grant involving service belongs there is no presumption one way or the other. Therefore the zamindar who seeks to eject a tenant must establish his right to resume the lands. In the present case the original grant is not filed. Nor do the documents filed in the case establish that the zamindar exercised his rights of resumption and purported to confer a new title on Kotayya. Ess. p. 14-b, P. 15-a, p. 14-a, p. 15 and P. 13 only show that the zamindar collected some amounts from Kotayya and issued a patta. They are consistent both, with the recognition of a preexisting right and with conferment of a new title. The only document which discloses the history of the plaint schedule lands is Ex. P-3, the Register of Inams dated 7-10-1859. It shows that the lands were given for service under the zamindar. It indicates that even in 1794 a member of the Ammi-reddi family was in possession. It shows that the Government issued a title-deed in favour of Ammireddi Venkatachalam, but later on cancelled the resumption in the year 1922. It is not known When the grant was made and by whom or whether the services were continued or discontinued or demanded or refused. It is also not clear whether the land was given by the zamindar or whether the Inam was comprised of both the varams or the melvaram. But one thing It clearly shows Is that this family had been in possession and enjoyment of this plot for over 100 years. It does not establish that Kotayya and his ancestors were doing any service for a long period of time. It is impossible therefore to hold on the evidence that Kottayya and his ancestors had no preexisting interest in the lands and that the zamindar validly resumed the lands and conferred a new root of title on Kotayya. Learned counsel for the appellant relied upon the decision in 'Sadasivarayudu v. Venkataswami' 62 M.L.J. 698 and contended that ft was in all forms with the instant case. I cannot agree. There the learned Judges held that ft holder of a village under a service tenure cannot acquire a right of permanent occupancy under the Estates Land Act and his tenants are in no better position. The right of the zamindar to resume the village was not questioned in that case, but it was argued that the tenants who were let into possession by the Inamdar acquired rights under the provisions of the Estates Land Act. The learned Judges held that the land which cannot be a ryoti land between the grantor and the service-holder cannot become a ryoti land as between the later and his tenant. This decision does not support tbe contention of the appellant. I, therefore, accept the finding of the Court below that Ex. P-4, dated 4-4-1941 was not valid and did not convey any Interest to the plaintiff.
4. The learned counsel for the appellant next contended that the finding of the learned Judge that a son was not born alive to the plaintiff was not correct. This is a pure question of fact and no permissible grounds have been advanced before me to Justify interference. I accept the finding.
5. Lastly it was contended that for the purpose of inheritance it was not necessary that the child should have been born alive but it would be enough that it was conceived. Reliance was placed upon the well recognised principle of Hindu Law that the rights of a son in the womb to the ancestral property cannot be defeated by a will or a gift. In 'Minakshi v. Virappa' 8 Mad 89 It is stated that the author of Smrithi Chandrika reciting the sloka :
'The venerable teachers direct that ownership to wealth is acquired by birth alone' explains the terms 'By birth alone' as meaning by the very formation of the foetus in the mother's womb.'
It is not necessary to multiply cases. It cannot be disputed that under the Hindu Law a posthumous son will be entitled to succeed to the father or to claim a share in the Joint family property. But the learned counsel argued for an extension of the principle even to a case of a still born son. His argument may be ingenious but, in my view, it is fallacious. The law of inheritance applies only to persons who are born alive but not to corpses. 'Inherit' means 'receive by legal descent or succession', and obviously a corpse cannot receive the property from another. A living person, though not born, but only existed in the womb at the time the succession opened is treated by fiction under Hindu law for the purpose of succession as if in existence at the time the succession opened, but a dead body cannot have a legal existence. The learned author of Hindu law (Golap-chandra Sarkar Sastri), in his 8th Edition at page 274 says :
'Hence a son and the like may be said to acquire the right from the moment of their conception; but it is absolutely necessary that the child in 'embryo' should be born alive or come into existence in order to be invested with the right; for, the course of inheritance cannot be diverted by the mere foetal existence of a child not born alive; and no person can claim an estate, as heir of a still born child.'
I respectfully agree with the above observations of the learned author. I cannot therefore accept this contention either.
6. Before I close, it is also necessary to notice a preliminary objection raised by the learned Counsel for the respondent. The learned Judge gave a declaration that the plaintiff was entitled to a life estate. The defendant preferred an appeal to the District Judge, but the plaintiff did not choose to do so. It is therefore contended that the appellant is precluded from arguing that the defendant did not acquire any right under Ex. D-I. There is no force in this argument, for the appellant would be entitled to support the judgment of the first Court on other grounds, though he could not get a higher relief, even if he succeeded, than that given to him in the first Court.
7. In the result the second appeal is dismissed with costs.