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Vijayasami Vs. Periasami - Court Judgment

LegalCrystal Citation
SubjectFamily;Limitation
CourtChennai
Decided On
Judge
Reported in(1885)ILR7Mad242
AppellantVijayasami
RespondentPeriasami
Cases ReferredAumirtolall Bose v. Rajooneekant Mitter L.R.
Excerpt:
hindu law - impartible zamindari--succession--adverse possession by one branch of family--limitation. - - litigation arose between them and the istimrar zamindar's widow, and it was continued by gouri vallaba tevar's daughter, kattama nachiyar, whose claim was eventually decreed by the privy council in 1863. she was placed thereupon in possession and continued to enjoy the estate until 1877 when she died......averred, was the zamindar's first wife. he stated also that gouri vallaba tevar left three sons, muttu ramalinga tevar, namasivaya tevar, his father, and ramasami tevar; that the eldest son, muttu ramalinga, died in 1824; and that namasivaya and ramasami died in 1850 and 1870 respectively. he alleged further that the eldest son, muttu ramalinga, left four sons, gouri vallaba, muttu vaduga, vijaya ragunada, and chiranjivi muttu ramalinga; that namasivaya left him surviving gouri vallaba alias muttu ramalinga, namasivaya, and vijayasami alias namasivaya, the appellant; and that his elder brothers, gouri vallaba alias muttu ramalinga and namasivaya died in 1861 and 1870 respectively. he stated that although he was born during the istimrar zamindar's lifetime, he was not in a position to.....
Judgment:

1. This appeal arises in a suit brought by the appellant to recover the zamindari of Sivaganga. The Subordinate Judge dismissed the suit on the ground that it was barred by limitation, that there were nearer heirs in existence, and that the right of succession, if any, which vested in the descendants of the istimrar zamindar, by his alleged first wife, Manikkathal, had become extinct from lapse of time. This zamindari, which is an impartible estate, was acquired, as observed by the Privy Council in Kattama Nachiyar v. The Raja of Sivaganga 9 M.I.A. 543 by the istimrar zamindar, Gouri Vallaba Tevar. He died in 1829, and the representatives of his elder brother, Oya Tevar, then took possession of the estate. Litigation arose between them and the istimrar zamindar's widow, and it was continued by Gouri Vallaba Tevar's daughter, Kattama Nachiyar, whose claim was eventually decreed by the Privy Council in 1863. She was placed thereupon in possession and continued to enjoy the estate until 1877 when she died. The respondent, her elder sister's son, then claimed the zamindari from her own sons by seniority of descent and recovered it from them. The appellant alleged that he was entitled to it in preference to the respondent, on the ground that he was the son of Namasivaya Tevar, the son of the istimrar zamindar by Manikkathal, who, the appellant averred, was the zamindar's first wife. He stated also that Gouri Vallaba Tevar left three sons, Muttu Ramalinga Tevar, Namasivaya Tevar, his father, and Ramasami Tevar; that the eldest son, Muttu Ramalinga, died in 1824; and that Namasivaya and Ramasami died in 1850 and 1870 respectively. He alleged further that the eldest son, Muttu Ramalinga, left four sons, Gouri Vallaba, Muttu Vaduga, Vijaya Ragunada, and Chiranjivi Muttu Ramalinga; that Namasivaya left him surviving Gouri Vallaba alias Muttu Ramalinga, Namasivaya, and Vijayasami alias Namasivaya, the appellant; and that his elder brothers, Gouri Vallaba alias Muttu Ramalinga and Namasivaya died in 1861 and 1870 respectively. He stated that although he was born during the istimrar zamindar's lifetime, he was not in a position to sue until his father, his eldest brothers, and Vijaya Ragunada, the son of the eldest son of Gouri Vallaba Tevar, died. The respondent denied that Manikkathal was the wife of the istimrar zamindar and contended that the claim was barred by limitation. He pleaded also jus tertii and averred that there were now alive a son's grandson of Muttu Ramalinga, the eldest son of the istimrar zamindar; a son of the second son Muttu Vaduga and a son of the third son Vijaya Ragunada and two sons of Chiranjivi Muttu Ramalinga, the fourth son of Muttu Ramalinga, who was the eldest son of the istimrar zamindar. The appellant's counsel admitted the existence of all these persons with the exception of the great-grandson of Muttu Ramalinga, the son of Gouri Vallaba Tevar.

2. We agree with the Subordinate Judge that, for the purposes of this suit, it is sufficient to decide the questions of limitation and of jus tertii. Limitation began to run from 1829 and continued to run without interruption until the 25th January 1881 as against the descendants of the istimrar zamindar by Manikkathal. Assuming that, as alleged by the appellant, Manikkathal was the lawful wife of the original zamindar, the impartible estate vested in the joint Hindu family consisting of the sons of the eldest son, Muttu Ramalinga, and of his other sons in preference either to his collateral heirs, the sons of Oya Tevar, or to his widow and daughter. This right of the joint family became barred by its non-exercise for upwards of fifty years. It may be that, when an impartible estate vests in a joint family consisting of several coparceners and is capable of enjoyment but by a single member at a time, the rights of survivorship vesting in the other coparceners [245] cannot arise as between themselves, until each branch entitled to preferential enjoyment, according to seniority of descent, becomes either extinct or relinquishes its rights. But as between the joint family and claimants under a title adverse to it, the coparcener in enjoyment and the zamindar for the time being represents for purposes of limitation the entire joint family consisting of his lineal and collateral heirs. The right of survivorship is a limiting incident attaching to, and dependent on, the right of present enjoyment vesting in the senior representative of the family, and when the last-mentioned right is barred, the former, which is only its offshoot, is also barred. If the contention be valid that limitation would commence to run against each collateral heir or co-parcener only when his right of survivorship accrues, the statute would practically have no application as between the joint family entitled to an impartible estate and adverse claimants. This representation of the appellant in the person of the senior member is even more complete than the representation of a reversioner by a childless widow. But the case of Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty 9 W.R. 505 was approved by the Privy Council in Aumirtolall Bose v. Rajooneekant Mitter L.R. 2 IndAp 121. The appellant must, therefore, be considered for purposes of limitation as between himself and claimants in possession under a title adverse to that of the family, to be entitled to take the zamindari under the person entitled to present enjoyment as the representative of the joint family of which he is a member. Furthermore, the right of survivorship vesting in the appellant has not yet matured into a right of present possession so as to sustain an action of ejectment.

3. Admittedly there are nearer heirs in existence and they are not impleaded in this suit.

4. The award of full costs is in accordance with practice and not opposed to he rules prescribed by this Court.

5. The appeal fails and we dismiss it with costs.


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