1. These two appeals are preferred from the decree of the District Court of Coimbatore in Original Suit No. 7 of 1891. No. 63 by defendants 4 and 5 and No. 64 by defendants 7, 10, 11, 13 to 15 and 17 to 20.
2. The properties in dispute belonged to one Cbidambara Mudali, Upon his death, they devolved on his adopted son Venkatachella Mudali, the last full owner. He died unmarried during his minority and his adoptive mother Muttammal succeeded him. Upon her death in May 1890, several persons claimed the right of succession.
3. The three plaintiffs and defendants Nos. 1 and 2, the third defendant and 'defendants Nos. 4 and 6 are the several classes of relations who claimed the succession. The third defendant claimed to be a dayadi or sapinda of Venkatachella Mudali the last male owner, and also his mother's sister's son. The fourth and fifth defendants are the daughters of two sisters of Venkatachella Mudali, and the plaintiffs and defendants, Nos. 1 and 2 are the daughter's sons of Venkatachella Mudali, the senior, who was the paternal undo of the last male owner. The subjoined genealogical table shows how the several claimants are related to each other and to Venkatachella Mudali.
No. 1 No. 2
Mudali. Mudali = Muttammal.
| | | | | | |
No. 4 No. 5 No. 3 No. 14 No. 9 No. 10 No. 11
Daughter Daughter Muttasami Venkatachella Adopted son and Daughter Daughter,
Minakshi Lakshi Mudali, died Mudali=tanati last male owner Sornathammal. Parvathi Ammal.
Ammal. Ammal. before No. 2 Ammal. Venkatachella | |
| | | | Mudali. | |
No. 6 No. 7 No. 8 Daughter No. 12 No. 13
Sons son. Kunasami Mudali Parvathi Daughter, Daughter,
Plaintiffs second who died before Ammal, fourth defendant, fifth defendant
and first defendant. No. 2 first Sundarammal Subbammal
4. The eight issues fixed in this case indicate the contentions of the parties now in possession of the several items of property and the several defences set up by them. The Judge decided the first issue for plaintiffs and the second and third issues against third defendant. As to the fifth and eighth issues, his decision is that Muttammal did make a gift of the lands to the several defendants, but that it is not proved that she had authority to do so.
5. As plaintiffs and defendants Nos. 1, 2,3, 6 and 12 entered into a compromise pending decision, the Judge has recorded no findings on the fourth, sixth and seventh issues.
6. Against his decision two sets of defendants have appealed.
7. Appeal No. 63.--The appellants' first contention is that the Judge's finding that third defendant is not a dayadi is contrary to the weight of evidence. The Judge has stated his reasons for his finding in paragraphs 1 to 6 of his judgment. On reading the evidence, we see no sufficient reason to come to a different conclusion. The evidence consists in the main first of declarations made by Muttammal, and secondly of those alleged to have been made by Chidambara Mudali, her husband, and thirdly of statements of witnesses that he is a dayadi and that ho performed the funeral and other obsequies of both Chidambara Mudali and his widow. The witriesses who depose in appellants' favour and to admissions of third defendant's relationship are mostly unconnected with the family and their statements are not consistent with each other. In andeavouring to help the appellants several go too far when they say that third defendant was not only a gnati out also a coparcener or undivided gnati and that he performed Chidambaram's obsequies while the last male owner, his adopted son, was alive. It is true that there is documentary evidence in support of Muttammal's admission, but, as observed by the Judge, it is not safe to attach weight to it, Admittedly the third defendant is her sister's son and she made the admission on occasions when she had reason to be specially kind to him. The contention that he is a gnati or sapinda must be disallowed as not proved. Another contention in appeal is that fifth defendant's first witness Subbaraya Mudali is also a sapinda of the last full owner. The Judge refers to Subbaraya Mudali in paragraph 4 of his judgment and remarks that he has made no attempt to secure the reversion We observe further that fourth and fifth defendants did not plead his status as a sapinda in answer to plaintiff's claim or ask for an issue in regard to it.
8. It is, however, admitted, that third defendant is the son of Muttammal's sister and therefore mother's sister's son of the last male owner. The Judge finds and it is also proved, that during her life, Muttammal gave portions of the property in dispute to fourth and fifth defendants who are her daughter's daughters, with the consent and approval of third defendant, It is in evidence that she gave other portions of her son's property to third defendant and his wife and to other defendants. As plaintiff's relationship to Vencatachella Mudali is admitted, the question of law arising for decision is whether as the sister's daughters of Vencatachella or by reason of the consent of his mother's sister's son, the third defendant, fourth and fifth defendants exclude plaintiffs, from succession. In paragraph 2 of his judgment the Judge relies on the table of succession in Mayne's Hindu Law, sections 466 and 535 and concludes that uncle's daughter's sons are preforable heirs as compared either with sister's daughters who have no place among bandhus or wich the maternal aunt's son who is only related on the mother's side. Appellant's pleader contends that male bandhus are to be preferred to females only when they belong to the same class and that appellants are entitled to the reversion. In support of his contention he relies on Muttusami v. Muttukumarasami I.L.R. 16 Mad. 23 On the other hand, it is urged for plaintiffs that as bhinna gotra sapindas on the father's side they are the next reversioners and reliance is placed on the decision in Umaid Bhadur v. Udoi Chand I.L.R. 6 Cal. 119
9. We are of opinion that the contention on appellant's behalf cannot be supported. As sister's daughters they are not bandhus in the sense that bandhus are bhinna gotra sapindas as stated in chapter II, Section V, sloka 5 of the Mitakshara, and if they are heirs they can only take after them as female relatives--according to the decision of the High Court in Mattusami v. Muttibkimiarasami I.L.R. 16 Mad. 23 There can be no doubt that whatever their rights may be as relatives, they cannot exclude male relatives who as bhinna gotra sapindas or regular bandhus are entitled to succeed under the Mitakshara law in preference to them.
10. The learned pleader for appellant argues that under Hindu law males exclude females only when they belong to the same class of relatives, but to this proposition we cannot accede. Take, for instance, the case of competition between a sister and the son of another sister, and it cannot be denied the latter excludes the former, because he is a bhinna gotra sapinda, whilst the sister is a mere re-lativeand being a female can offer no funeral oblations. Again, it is a well-known principle of Hindu law that, when,, in the table of succession,, one class of heirs, ranks, above another, the class that is named first must be exhausted before the class that is named next can be let in, as in the case of a brother and nephew or of nephew and brother's grandson. As female relatives form a class inferior jo male bhinna gotra sapindas as in the case of a sister and sister's son, plaintiffs as daughter's sons of the last male owner's paternal uncle are preferable heirs to appellants, who are only his sister's daughters who, if as such in the list of heirs at all, have a place therein as mere relatives before the property isscheats to the Crown. As between plaintiffs and the third defendant the fatter is a bandhu ex parte materna, whilst the former are bandhus ex parte natenia. The decision in Muttummi v. Muttukumarasami I.L.R. 16 Mad. 23 is not in point. There the competition was between a maternal uncle and the father's paternal aunt's son, both of whom were bhinna gotra sapindas and bandhus. This appeal must fail and is dismissed with costs.
11. Appeal No. 64,--As regards Appeal No. 64, it refers to the contention which forms the subject of the eighth issue. The properties to which it relates passed into appellant's possession I'rorn that of one Tanatiammai, a widow of one of the first cousins of the last male owner, No. 14 in the pedigree. The Judge finds as a fact that Muttammal, the widow of Chidambara Mudali, and his adopted son, the last male owner, executed a deed by way of partition assigning certain lands to the mother and daughter in 1861. He was of opinion that Muttammal had no right to convey the lands absolutely and that her son was then a minor, but that effect could be given to the alienation as a provision for maintenance which it was competent to Muttammal to make. On this view he held that alienation was not binding upon the reversioners as a body after the demise of Tanatiammai, and that in the meantime, the plaintiffs were not entitled to claim possession and passed a decree accordingly. He declared the title of plaintiffs as reversioners and as a, body after Tanatiammal's death, because he did not desire to adjudicate on the effect of first plaintiff's attestation of document IX, whereby Tanatiammai and her daughter Parvati; who is first plaintiff's wife, conveyed the lands in dispute for Rs. 6,000 in July 1876 to one Aravan Pusari. The contentions on appeal are--(1) that no declaration ought to have been made; (2) that defendants Nos. 8, 4 and 5 are as bandhus proferable heirs; (8) that a suit for a declaration of title was barred by limitation; and (4) that it was competent to Muttammal as the guardian and adoptive mother of her minor son to alienate absolutely a portion of the property in lieu of maintenance. We do not think that the Judge's decree can be supported so far as it is against these appellants. He finds as a fact that the alienation was made by Muttammal and her minor son and that what was conveyed was an absolute estate. As the last male owner was alive the alienation was not that of a widow's estate by a widow but that of an absolute ' estate by the guardian of the last male owner. It was open to any next friend of his to have stepped forward during his minority and set aside the alienation on the ground that it was an act done without adequate necessity or in excess of the limited authority of a guardian. As the alienation took place in 1861 whilst the present suit was brought in 1891, a suit to set it aside would be barred, if the minor were still alive and his reversioners cannot take a higher position, The plaintiff's claim must, therefore, be held to be time-barred.
12. This appeal must be allowed and the decree of the Judge set aside, so far as it refers to the properties in appellant's possession with costs throughout.