1. These appeals under Section 51 of Act XXVI of 1948 are directed against the orders of the Estates Abolition Tribunal, Madurai in O. P. Nos. 167 and 170 of 1951, rejecting the claim of the respective appellants for a share in the compensation amount. Sivagiri in the Tirunveli District was an ancient impartible estate; and it was also included in the schedule to the Madras Impartible Estates Act (II of 1904). On the passing of the Madras Abolition of Zamindari and Conversion into Ryotwari Act (XXVI of 1948), which hereafter shall be refer-red to as the Act, the Sivagiri estate was taken over by the Government as and from 3-1-1951, the date of the notification. An advance compensation of Rs. 2,40,000 was deposited by the Government with the Chairman of the Estates Abolition Tribunal.
2. Senthattikalai Pandian Chinnathambiar, the previous Zamindar of Sivagiri Estate, died in 1934, leaving him surviving 7 sons, born of lawful wedlock and one Chinnadurai alias Ramchandran, the appellant in S. T. A. No. 138 of 1954, who was born of his continuously kept concubine. On the death of the Zamindar, the eldest of the legitimate sons, Varaguna Panclian, succeeded to the Zamindari. The management of the estate was, however, handed over by him in 1941 to the Court of Wards under Section 18 of the Madras Court of Wards Act. Varaguna Pandian married two wives, and had a concubine as well. He had four sons through his two wives, and two illegitimate sons, Chelladuri and Swamidurai, through his concubine. They are the appellants in S. T. A. No. 132 of 1954. It must be noticed that, on the date of the notification under Act 26 of 1948, Varaguna Panclian was the land-holder, though the management of the Sivagiri estate was in the hands of the Court of Wards.
3. In O. P. No. 170 of 1951, the six brothers of the Zamindar, Varaguna Pandian joining with their illegitimate half brother, Chinnadurai, (viz, the legitimate and illegitimate sons of the previous zamindar), claimed that they were entitled to a share in the compensation amount under Section 45(6) of the Act, or alternatively, to an 'aliquot share of the 1/5th of the compensation amount under Section 45(4) and (5). During the pendency of the petition, an arrangement Was entered into, between the court of Wards and the six brothers of the Zarnindar.
The petition, therefore, proceeded before the Tribunal only with regard to 'the claim of the illegitimate son of the previous zammindar. His claim was contested by the Court of Wards. The Court of Wards denied that he was the illegitimate son of the previous Zamindar; it was also contended that, even if he were the illegitimate son of the previous zamindar, he Would not be entitled to any maintenance, out of the impartible estate of Sivagin, and consequently to any portion of the compensation amount.
4. The Tribunal found that Chinnadurai was the Dasi Putra or illegitimate son of the previous zamindar, born to him by his continuously kept concubine. On the other question, the Tribunal held that, as there was no proof of any special custom obtaining in the family, whereby the illegitimate son of the zamindar was entitled to be paid maintenance out of the income from the impartible estate, Chinna Dorai's claim had to fail. In that view, the Tribunal rejected the application of the illegitimate half brother of the Zamindar to a share in the amount, set apart for payment to the maintenance holders under Section 45. Chinna Durai has filed S. T. A. No. 136 of 1954 against the order of the Tribunal.
5. O. P. No. 167 of 1951 was filed by Chella Durai and Sami Durai claiming as the illegitimate sons of Varaguna Pandian, who was the Zamindar at the time of taking over the estate by the Government. They put forth, claims similar to Chinna Durai. Their status as illegitimate sons of the zamindar was, however, not denied. But their right to participate in the compensation amount was denied. The Tribunal held that, under the law the illegitimate, sons of the Zamindar would not be entitled to maintenance out of the income from the impartible estate, in the absence of custom, and that, is there was no proof of any such custom, the petitioners would not be entitled to the reliefs prayed for. In that view, the claim of Chella Durai and Sami. Durai was rejected. S. T. A. No. 132 of 1954 is filed by the aggrieved claimants against the order of the Tribunal.
6. It may be noticed that, in neither of the two cases, was any evidence let in about the existence of any custom in the family of the zamindar of Sivagiri, which would entitle the illegitimate son of a past or present Zamindar to be maintained out of the impartible estate. Such a right, however, has been put before us on the basis, that the custom was too well established to require proof of it in this particular, case, and that judicial notice should be taken of the existence of such a custom.
7. Independent of such a custom, it was also contended that an illegitimate son of the proprietor of an impartible estate would be entitled to be maintained out of it. Reliance for this contention was placed upon the dictum in certain decided cases, that an illegitimate son of a Sudra has the stains of a son would be a member of his putative father's family. It was argued that such an illegitimate son would, be entitled to be maintained out of income from the impartible estate, just as a son would be, and that on the abolition of the zamindari, the illegitimate son would be entitled to a share along with other members of the family in the one-fifth share of the compensation amount under Section 45(4) of the Act.. The validity of the contention depends on the assumption, that independent of a custom every member of a Zamindar's family would be entitled to he maintained from the impartible estate. That we shall show presently is not the law.
8. But before considering that aspect of the matter it is necessary to dispose of the contention regarding the claim to a share of the compensation amount under Section 45(6).
9. Under Section 3(b) of the Act, the entire estate shall stand transferred to the Government and was in them, free of all encumbrances. Under Section 66, [lie Madras Impartible Estates Act, 1904, would cease to apply to tile estate, if it had been governed by that enactment immediately before that date. Under Section 3(b) of the Act, the principal or any other land holder and any other person whose rights stand transferred shall be entitled to such rights arid privileges as are recognised or conferred under the Act. The Act provides for payment of compensation for an estate taken over. Section 45 refers to apportionment of compensation in the case of certain impartment estates. It runs as follows: :
"(1) In the case of an impartible estate which had to be regarded as the property of a joint Hindu family for the purpose of ascertaining the succession thereto immediately before the notified date, the following provisions shall apply:
(2) The Tribunal shall determine the aggregate compensation payable to all the following persons, considered as a single group;
(a) the principal landholder and his legitimate sons, grandsons and great grandsons in the male line living or in the womb on the notified date, including sons, grandsons and great grandsons adopted be fore such date (who are hereinafter called 'shares') and
(b) other persons, who, immediately before the notified date, were entitled to maintenance out of the estate and its income either under Section 9 or 12 of the Madras Impartible Estates Act, 1904 or under any decree or order of a court, award, or other instrument in writing or contract or family arrangement which is binding on the principal landholder (who are hereinafter called maintenance holders').
Provided that no such maintenance holder shall he entitled to any portion of the aggregate compensation aforesaid, if before the notified date, his claim for maintenance, or the claim of his branch of the family or maintenance has been settled or discharged in full.
(3) The Tribunal shall next determine which creditors, if any, are lawfully entitled to have their debts paid from and out of the assets of the impartible estate, and the amount to which each of them is so entitled and only the remainder of the aggregate compensation shall be divisible among the sharers and maintenance holders as hereinafter provided.
(4) The portion of the aggregate compensation aforesaid payable to the maintenance holders shall be determined by the Tribunal and notwithstanding any arrangement already made in respect of maintenance whether by a decree or order of a court award or other instrument in writing or contract or family arrangement such portion shall not exceed one fifth of the remainder referred to in Sub-section (3) except in the case referred to in the second proviso to Section 47, Sub-section (2),
(5) (a) The Tribunal shall in determining the amount of the compensation payable to the maintenance holders and apportioning the same among them, have regard, as far as possible to the following consideration, namely:
(i) the compensation payable in respect of the estate;
(ii) the number of persons to be maintained out of the estate;
(iii) the nearest of relationship of the person claiming to be maintained;
(iv) the other sources of income of the claimant; and
(v) the circumstances of the family of the claimant;
(b) For the purpose of securing (i) that the amount of compensation payable to the maintenance holders does not exceed the limit specified in Sub-section (4) and (ii) that the same is apportioned among them on an equitable basis, the Tribunal shall have power, wherever necessary, to reopen, any arrangement already made in respect of maintenance, whether by a decree or order of a court, award or other instrument in writing or contract or family arrangement;
(6) The balance of the aggregate compensation shall be divided among the shares, as if they owned such balance as a joint Hindu family, and a partition thereof had been effected among them on the notified date".
As we pointed out before, on the taking over of an estate under the Act the only rights created in favour of the erstwhile landholder including the members of the family would be those granted under the Act, viz. compensation money ov pattas in certain cases. The Act makes provision for the distribution of the compensation amount. Section 45 contemplates such distribution only amongst the sharers, who have been statutorily defined as the principal landholder and certain of his descendants in the male line; vide Section 45(2). That specifically refers only to legitimate issue. No other member of the family would therefore get a right to a share in the compensation amount under Section 45(6).
10. The claim for a share of the compensation amount would depend on the question, whether a coparcenary existed between the holder of the impartible estate and the various claimants in respect of the compensation amount This question arose for consideration in Janardhana Krishna Ranga Rao v. State of Madras, . It was held in that case that the compensation amount paid by the Government could not be treated as joint family property, and that the custom of impartibility did not attach itself to the compensation to entitle the brother of a zamindar to claim a share therein.
The reason was that the younger brother of the principle landholder, who had no interest in the impartible-estate on the date of notification except a right to get his customary maintenance, would not be entitled to any right in the compensation amount, except to such rights therein which are granted to him by the Act in lieu of the right of maintenance he had. The learned counsel for the appellants, although he did not give up the point conceded that this decision is binding on us, which should suffice to negative the right of the appellants to share in the compensation amount under Section 45(6) of the. Act. In our opinion the decision in is decisive on the claim to a share of the compensation amount.
11. The substantial question which is common to both the appeals is, whether an illegitimate SOD of a landholder of an impartible estate, would be entitled to maintenance out of the estate, so as to entitle him to a share in the compensation amount which is set apart under the provisions of Section 45(4) of the Act to the persons entitled to maintenance out of the estate.
12. In certain cases a right to maintenance may or does exist irrespective of the possession of any property. For example, under the Hindu law, there is a personal liability to maintain the wife, minor sons, unmarried daughters and aged parents.
13. This obligation does not depend on the person owning any property. Equally personal is the liability recognised under Section 488 Cr. P. C. which would cover an obligation to maintain an illegitimate child. Such personal obligation very often lapse on the death of the person liable to provide the maintenance. Such rights would not however come under Section 45 of the Act except to the extent of the maintenance holder coming in, in regard to unpaid arrears of maintenance as a creditor of the principal landholder.
14. There is, however, yet another kind of liability. That depends on the existence of property. The basis of such a liability is stated in Mayne on Hindu Law and Usage, 11th Edn. page 813 thus:
"The importance and extent of the rights of maintenance necessarily arises from the theory of an undivided family. The head of such a family is bound to maintain its members, their wives and their children, to perform their ceremonies and to defray the expenses of their marriage; in other words, those who would be entitled to share in the bulk of the property are entitled to have all their necessary expenses paid out of its income".
The principle or theory on which the right is based is that the member had some kind of right in the property as a member of the family, though he was not a coparcener or one entitled to claim a share therein. Therefore, before a person can claim to be entitled to he maintained out of impartible estate, it should be found that he had interest therein. It is now well settled that impartibility is essentially a creature of custom.
Ordinarily family property is partible; but property might not be partible by virtue of the express terms in a Sannad or grant made by the Crown or Government, or it may be such by reason of custom. Under the Hindu Succession Act, 30 of 1956, impartibility is recognised only in the case where the terms of a Crown or Government grant impose such a condition. Impartibility by custom has not been recognised and succession to such property would hereafter be regulated by the rules which apply to other property.
15. But the rights of the parties in the present case arose before the Hindu Succession Act, 1955 came into operation and will be governed by the general principles of the Hindu law. Where impartibility is by virtue of custom, it has been held that the property, though it was an ancestral one, was not held in coparcenary by the various members of the family. The junior members have no right to the property. They have no right to interdict alienations by the holder of the estate or to claim partition. In Shibaprasad Singh v. Prayagkumari Debi, ILR 59 Cal 1399 at p. 1413 : (AIR 1932 PC 216 at p. 222), Sir Dins haw Mulla observed.
"Impartibility is essentially a creature of custom. In the case of ordinary joint family property, members of the family have (1) the right of partition, (2) the right to restrain alienations by the head of the family except for necessity, (3) the right of maintenance, and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartibility -- To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartiblity This right, therefore, still remains ...... To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property, though the other rights, which a coparcener acquires by birth in joint family property no longer exist, the birth right of the senior member to take by survivorship still remains".
It was held that the holder of an impartible estate could alienate by gift inter vivos or by will unless he was prevented from doing so by the terms of the grant or by custom. This rule however would have only a limited application in Madras, where there is a statutory provision regulating the rights over impartible estates which have been included in the schedule thereto. Section 4(1) of that enactment specifically provides that the proprietor of an impartible estate would not be capable of alienating or binding by his debts, except to the extent to which the manager of a joint Hindu family could do.
16. But whether it be under the general law or under the provisions of Madras Act II of 1904, the junior members would have no interest in the impartible estate. Having no interest in the impartible estate they would have no right to maintenance out of that estate on the theory of such liability attaching to fimily properly in favour of its members. An illegitimate son whether of the previous or the present zamindar would therefore have no right to be maintained out of the impartible estate under the general law relating to impartible estates.
17. But right to maintenance could exist if there is a universal local or family custom sanctioning it. In Venkata Mahipati Gangadhara Rama Rao v. Rajah of Pithapur, ILR 41 Mad 778: (AIR 1918 PC 81). the Privy Council he'd that, In the absence of special custom, the grandson of the deceased zamindar would not be entitled to maintenance out of impartible estate in the hands of his successor. Lord Dunedin observed at page 785 (of ILR Mad): (at p. 83 of AIR):
"An impartible zamindari is the creature of custom, and it is of its existence that no coparcenery exists. This being so, the basis of the claim is gone, inasmuch as it is founded on the consideration that the plaintiff is a person who, if the zamindari were not impartible, would be entitled as of right to maintenance, There is no claim based on personal relationship".
"This proposition, it must be noted, does not negative the doctrine that there are members of the family entitled to maintenance in the case of an impartible zamindari. Just as the impartibility is the creature of custom so custom may and does affirm a right to maintenance in certain members of the family. No attempt has been as already stated, made by the plain tiff to prove any special custom in this zamindari. That by itself in the case of some claims would not be fatal. When a custom or usage, whether in regard to a tenure or a contract or a family right is repeatedly brought to the notice of the Courts of a country, the courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case".
18. In Kondama Naicker v. Kondama Naicker, 1942 Mad WN 71, there was a claim for maintenance by the illegitimate son of a former zamindar of an impartible estate. The zamindari was in the possession of the partner uncle's son of the former zamindar. The claim of the illegitimate son was put on the ground of his right in the impartible estate as a member of the joint family. That claim was negatived by a Bench of this court following the decision of the Privy Council in ILR 41 Mad 778 : (AIR 1918 PC 81).
19. The question was elaborately considered again by the Privy Council in Commissioner of Income-tax, Punjab v. Krishna Kishore, ILR (1942) 23 Lah 1: (AIR 1941 PC 120). It was held that Income from an impartible estate was not the income of the undivided family but that of the holder, notwithstanding the fact that he had sons, and that there was no right to maintenance in the junior members save as such that was impressed by custom. Such custom was held to have been recognised in the case of sons.
20. Section 9 of the Madras Impartible Estates Act recognises the right of certain junior members to maintenance and makes specific provisions as to the persons entitled to maintenance out of an impartible estate and its income where such an estate is joint family property. Section 9 sets out the persons entitled to maintenance. They are the son, grandson and great grandson of the proprietor of the estate of any previous proprietor as well as their childless widows, the widow of any previous proprietor, and the unmarried daughter of the proprietor or of any previous proprietor as well as of a son or grandson, of the proprietor or of any previous proprietor where she has neither father, mother, and brother. An illegitimate son would not come within the category of relations set out in Section 9. Section 12 states:
"Nothing contained in this Act shall affect the right to maintenance out of an impartible estate and the income thereof, of any other relations of the proprietor or any previous proprietor under any law or custom for the time being in force".
Therefore, before an illegitimate son can claim to be maintained out of an impartible estate or its income, he should prove a custom by which he would be entitled to such maintenance.
21. The ordinary rule is that the party who sets up a custom should prove it. But there may be cases in which the custom is so well recognised that courts might take notice of them as engrafted on the general Hindu law. In such cases it would not be necessary for the party setting up the custom to prove it in the way in which a custom should be proved. In ILR 41 Mad 778 : (AIR 1918 PC 81) it was observed that if a custom, had been re-peatedly brought to the notice of courts and recognised, the courts might accept the same as part of the law of the land without necessity of independent proof in any particular case.
22. There was such recognition in regard to the claim to maintenance by the son of previous proprietor. In Thangavelu v. Court of Wards, Madras 1946-2 Mad LJ 143: (AIR 1947 Mad 38), the rule was recognised in the case of- an illegitimate son as well. In that case Patanjiili Sastri J, (as he then was) observed at page 152 (of Mad LJ): (at p. 44 of AIR):
"The sons of a deceased Zamindar are entitled to maintenance out of the impartible estate in the hands of his successor without proof of special custom. The illegitimate son of a sudra has been held to be a member of his putative father's family and to have status of a son for purposes of maintenance. His right to receive maintenance out of the father's impartible estate was recognised and given effect to as well established by judicial precedents as long ago as 1870, in these circumstances we consider that no proof of special custom is necessary to entitle the appellants to maintenance out of the zamindari in the hands of the respondents 1 and 2".
23. The learned Judge referred to the decisions in Chuoturya Run Murdun v. Sahib Parhulad, 7 Moo Ind App 18 (PC), Nargunty Lathmeedevammal v. Venkama Naidoo, 9 Moo Ind App 66 (PC), Muthu-sami Jagaveera v. Vencateswara Yettayya, 12 Moo Ind App 203 (PC), and the same case on remand to the High Court in Yettappa Naicker v. Venkate-swara, 5 Mad HCR 405. The decision in 7 Moo Ind App 18 (PC) related to succession to a Raj. There was a claim by an illegitimate son of the previous Rajah who belonged to the Khatri caste, one of the regenerate castes in Hindu society. It was held that the illegitimate son would be entitled only to maintenance and not to a share in the property on the ground that the previous Rajah was not a sudra. 9 Moo Ind App 66 (PC) related to a disputed succession in regard to a palayam or Raj which was impartible. There is, however, nothing in the report to indicate as to whether the claim was by an illegitimate son.
In 12 Moo Ind App 203 (PC), there was a claim by the illegitimate son of the deceased Zamindar against the successor zamindar for maintenance. The courts in India decreed maintenance against the separate property of the zamindar in the hands of the successor. The Privy Council set aside that decree and remitted the matter for determination whether the maintenance could be paid out of income from the zamindari.
The judgment of the High Court after remand is reported in 5 Mad HCR
405. The learned Judges observed that it was clear upon the authorities cited, namely, 7 Moo Ind App 18 (PC) and 9 Moo Ind App 66 (PC), that impartible family estate was a fund on which maintenance might property be charged.
The learned Judges mention the fact that the Advocate General who appeared for the Zamindar did not dispute that the course of decisions had. settled thaf question. The decision makes it clear that the right of an illegitimate son of the previous zamin-dar to have his' maintenance paid out of impartible estate was recognised from very early times. In Maharajah of Vekatagiri v. Rajarajeswar Rao, ILR 1939 Mad 622: (AIR 1939 Mad 614), a claim was made for'maintenance by the . illegitimate son of a junior member against the holder of an impartible estate on the basis of a grant made in favour of his putative father.
The grant was construed as creating no rights in favour of an illegitimate issue. The learned Chief Justice held that there was no sufficient evidence in the case to prove a family or territorial custom. The claim in that ease was not by the illegitimate son of a zamindar but by one born to a junior member. The learned Judges however upheld his claim on the basis that he was a member of the family. That was reversed by the Privy Council in Rajah Krishnayachandra v. Rajeswara Rao ILR 1942 Mad 419 ; (AIR 1942 PC 3), Gurusami Pandian v. Pandia Chinnathambiar, ILR 44 Mad 1: (AIR 1921 Mad 340), was a case relating to the succession to the Sivagiri estate,
In the course of the judgment, Krishnan J. stated that it had not been shown in that zamindari there was any customary right to maintenance. That observation was made to repel an argument, that certain maintenance grants were made in recognition of grantees' right in the zamindari. The question of the illegitimate son's claim for maintenance did not arise in that case. As pointed out in 1946-2 Mad LJ 143 : (AIR 1947 Mad 38) there had been no instance in which such a right was put forward and negatived. Indeed there was no such decision brought to our notice.
Mr. Natcsan, the learned counsel for the respondents, contended that the decision in 12 Moo Ind App 203 (PC) and that reported in at page 405 of 5 Mad HCR were based on the theory that an illegitimate son, as a member of the family of his putative father, would be entitled to maintenance. That theory having been negatived by the later decisions in ILR 41 Mad 778 : (AIR 1918 PC 81) and in ILR. 1942-23 Lah 1 : (AIR 1941 Pp 120) it was contended that the basis of the earlier judgments was wrong, and they could no longer be relied on as validly recognising an illegitimate son's claim to maintenance.
In other words it was said that the earlier cases proceeded not on any custom which was alleged or proved but on the principle of law that an illegitimate son was a member of the family and was therefore entitled to maintenance, and that the decision in 1946-2. Mad LJ 143 :. (AIR 1947 Mad 38), requires reconsideration. We do not agree. The illegitimate son's claim has undoubtedly been recognised all these years. The circumstance that the reason for the Custom has subsequently been found to be wrong cannot affect ifs validity. It must be noticed that it is the usage which makes the law, and not the reason for such is usage. The essentials of a valid custom are that it should be continuous and uniform not immoral or opposed to pubic policy and must have the qualities of antiquity and certainty. All these are present in the instant case.
There is no further requirement under the Jaw that a custom in order to be upheld should be deducible from any accepted principle of law. In 1940-2 Mad LJ 143 : (AIR 1947 Mad 38) the learned Judges "rejected a similar contention in these words:-
"A right which was considered to be indisputably established more than half a century ago and which is not shown to have since been denied or disputed in any decided case cannot in our opinion, be overthrown on the strength of recently expounded theories regarding its basis".
We are in respectful agreement with that view. It would, therefore, follow that it is unnecessary for the appellants in the two appeals to adduce evidence of a custom, that they would be entitled to maintenance out of the impartible estate, as such Custom has been so well recognised as to become part of the law.
24. On behalf of the appellant in S. T. A. No. 138 of 1954 reliance was placed on Ex. A. 1, as amounting to recognition of his right to maintenance from the impartible estate. Ex. A. 1 is a decision of the magistrate on a reference by the Collector on behalf of the Court of Wards to settle the claim of maintenance of the appellants against their putative father, who was then alive.
As the putative father would be liable personally to maintain his illegitimate sons, no inference could be drawn from mere fact that maintenance was awarded to the appellant under Ex. A. 1, In view an illegitimate son of a proprietor of an impartible an illegitimate son of a proprietor of an impartible estate would be entitled to maintenance out of the Zamindari, it is unnecessary to consider that matter further. On the finding, that the appellants in both the appeals would be entitled to maintenance, from the impartible estate, they would be entitled to a share in the amount allotted under Section 45(4) to the maintenance-holders of the family.
25. The appeals are allowed to this extent. The order of the Tribunal is set aside and the matter is remanded for fixing the quantum of compensation payable to each of the appellants. The appellants will be entitled to recover their costs from the con testing respondents.