John Wallis, C.J.
1. This is an appeal from the judgment of the Subordinate Judge of Tuticorin in two suits which were tried together. In the first suit the plaintiff sued to recover the impartible estate of Sivagiri from the mother of the late zamindar who died unmarried in 1914, while in the second suit the plaintiff sued for a declaration that he was entitled to succeed as nearest reversioner on the death of the late zamindar's mother. She died in 1918 while the suit was pending, and he was then brought on as the second defendant in the first suit and will be so referred to. The istimrar or grantee of the permanent sanad died in 1819, and was succeeded by his daughter Virammal who died in 1835. She left two sons, Peria Dorai who succeeded her and was the grandfather of the late zamindar, and Chinna Dorai who had two sons, the elder commonly known as Periaswami who was the father of the plaintiff, and the younger, commonly known as Chinnaswami, who was the father of the second defendant, Chinnaswami and his family resided at Veppangulam, a village some twenty miles distant from Sivagiri, in a house which appears to have belonged to his father. Later, in 1843, he received a grant of lands and money in lieu of maintenance, and he and his family were allowed to occupy certain pannai or home farm lands belonging to the zamindari at a favourable rent, and also received occasional allowances for the performance of the usual ceremonies in connexion with births, deaths and marriages.
2. The late zamindar's mother, as first defendant in the main suit, did not rely solely on her title as preferential heir to the plaintiff, but also questioned his legitimacy, and put him to the proof that his father Periaswami was senior to the second defendant's father Chinnaswami, and also alleged that the plaintiff himself was younger than the second defendant.
3. The indication of seniority in the use of the names Periaswami and Chinnaswami is as clear as if one brother had been known as major and the other as minor, and the contention that Chinnaswami was the senior, which was the subject of the first issue, was withdrawn in the course of the trial. It is characteristic, however, of the unscrupulous manner in which the defence was conducted that the second defendant, who had admitted in his own plaint that his father Chinnaswami was junior to Periaswami, subsequently obtained leave to amend his plaint by alleging that his father was senior, and that he did not withdraw this contention until 1st August 1918, as stated by the Subordinate Judge in his judgment, after twenty-five of his witnesses had been examined. Allegations of illegitimacy have been almost in-variably made in suits as to the succession to zamindaris in Tinnevelly and the adjoining districts. In the present case they have been rightly rejected by the Subordinate Judge as baseless. Periaswami, the plaintiff's father, had no other wife but the plaintiff's mother, who was a lady of equal rank with his own, lived with him as his wife for some thirty-five years until his death, and bore him nine children. The case for the defence, which was not fully disclosed until a late stage of the trial, was that the plaintiff's mother was the wife of one Vythilinga of Venganallur village and left him shortly after the marriage to live with Periaswami; and a large number of defence witnesses have come forward to speak to this. The Subordinate Judge has rightly commented on the way in which this part of the case was put forward.
4. The first defendant only pleaded that the plaintiff's mother was not the lawfully wedded wife of Periaswami, though some underling about the same time stated in an affidavit that the union was adulterous. The second defendant was equally vague.
5. [His Lordship discussed the evidence and, continued:]
6. The appellant's case as to this part of the case is really hopeless, and the main issue of fact argued before us was as to whether the plaintiff had proved that he was older than the second defendant, as the Subordinate Judge has found. If the finding be correct, the plaintiff is entitled to succeed as the preferential heir in any view as to the line of succession to the zamindari.
7. [His Lordship discussed the evidence as to whether plaintiff was older than second defendant and continued:]
8. On the whole, I am clearly of opinion that there is no sufficient reason for differing from the finding of the Subordinate Judge, that the plaintiff is proved to be the older of the two.
9. These findings are admittedly conclusive as to the plaintiff's present right to the zamindari, but the question whether he is entitled to the income of the estate as from the death of the late zamindar until the death of his mother some two years later, during which period the estate was in the hands of a Receiver appointed in this suit, depends upon the question, whether on the death of the late zamindar without male descendants the zamindari devolved upon the plaintiff on the ground that the late zamindar and the plaintiff were members of a joint Hindu family in which the plaintiff was the preferential heir, or devolved in the first instance upon the late zamindar's mother on the ground that, as the late zamindar at the time of his death was divided from the plaintiff's family, she was entitled to succeed as next heir to his separate property. In that case, the plaintiff could only claim to succeed on the mother's death as next heir to the separate property of the zamindar.
10. If the late zamindar was undivided from the plaintiff's family, then for the purposes of succession the estate must be treated as if it had been partible; and, as on a partition the plaintiff and his brothers would have represented their deceased father and taken his share, they must also be considered to represent him for the purposes of succession to the impartible zamindari, so as to entitle the plaintiff as the eldest among them to succeed to the zamindari to which their father would have succeeded, if he had survived the late zamindar. This law of succession, which may have had its origin in the theory of dormant coparcenary on the part of the other members of the family, is not affected by the decisions of the Privy Council, beginning with Sartaj Kuari v. Deoraj Kuari I.L.R., (1888) All., 272 (P.C.), and ending with the recent decision of Rama Rao v. Rajah of Pittapur I.L.R.,(1918) Mad., 778 (P.C.), that the right of the other members of the family to maintenance must be rested entirely upon custom and was applied by the Privy Council in the very recent case of Tara, Kumari v. Chaturbhuj Narayan Singh I.L.R.(1915) , Calc., 1179 .
11. That, in ray opinion is a very important decision for our guidance, because it lays down, that in determining which line of succession to follow, the test is whether the last owner who left no male issue was or was not separated from the other members of the family, and expressly negatives the contention that, to let in the rule of succession as to separate estates, there must have been something in the nature of a partition of the impartible estate, or of an abandonment express or implied of the right to succeed to it as joint family property. As regards the first point, their Lordships observed that the claimants had no co-parcenary rights in the impartible estate, and no rights in that estate which entitled them to a partition of the impartible estate. As regards the second point, the result of the decision in my opinion is that the particular line of succession is incident to the status of the family, and depends entirely on whether the family is joint or has become separated. The earlier cases relied on for the respondent must be held to be merely applications of the rule laid down in this last case to the particular facts of those cases; and all we have to do is to decide whether the late zamindar at the time of his death was joint with or separated from the plaintiff's family. In this view of the law I cannot agree with the statement of the learned Subordinate Judge at the end of paragraph 134 of his judgment that it is not shown that 'assuming that Periadorai and Chinnadorai had a co-parcenary interest in the zamindari there was at any time a partition in respect of it between them.' I think it must be taken that Chinnadorai never had any coparcenary interest in the zamindari, and that all we have to decide is whether Periadorai's branch, to which the late zamindar belonged, was divided at the time of his death from Chinnadorai's branch.
12. When, in 1835, Periadorai on the death of his mother succeeded to the zamindari, as the heir of his maternal grandfather, the istimrar zamindar, ha was joint with his father and his brother Chinnadorai; and, as, if the zamindari had been partible, the two brothers would have taken it as ancestral property with rights of survivorship, as decided in the Juggempet case, Venkayyamma Garu y. Venkataramanayyamma Bahadur Garu , I see no rI.L.R.(1902) , Mad., 678eason why Chinnadorai should not be considered for the purposes of succession to the zamindari to have been joint with Periadorai. Here I may say that I agree with the learned Subordinate Judge, for the reasons given by him, in rejecting the contention that Periadorai took the zamindari as his separate property under the alleged will put forward by the defendants and that his mother was only given the right to manage. The official correspondence on the istimrar's death in 1819 refers to a will, but it is fairly clear from the correspondence and from the fact that the daughter was recognized as owning the zamindari in her own right that it was not the will put forward by the defence with the view of showing that the zamindari was the self-acquisition of Periadorai and so descendible as his separate property.
13. In the year 1843, when Periadorai was old enough to be given possession of the estate which had been managed by his father, disputes arose and were adjusted by an agreement. The Subordinate Judge has rejected the alleged agreement put forward for the defendants, Exhibit 44(a), and it is unnecessary to rely on it, as the terms of the agreement may be sufficiently gathered from the allegations and admissions of either side, which are recited in Exhibits O and O1, the judgment in the suit instituted by Chinnadorai for partition of the zamindari in 1848. The judgment of the first Court states that the plaintiff Chinnadorai admitted that in 1843 he had accepted an allowance from the zamindar in lieu of all claims. In his grounds of appeal, in Exhibit O1, Chinnadorai stated it was unlikely he would have remained satisfied with land amounting to 30 sangalies and 30 cottavarapadee yielding yearly revenue of only Rs. 200. To this the respondent replied that the evidence in the suit showed that the lands allotted to the defendant for his support were capable of yielding yearly Rs. 1,500, and that additional property valued at Rs. 21,300 hud been given him. The fact that Chinnadorai renounced all claims to the zamindari would not of course include a renunciation of his right to succeed as heir according to the law of succession to joint family property, if the family was undivided when the succession opened. After 1843 Chinnadorai and his father and family went to live at Veppangulam about 20 miles from Sivagiri in a family house, or palace as it is styled, which is said to have been the property of the father. Then came the unsuccessful suit of 1848 for partition of the zamindari. It has been contended before us that the effect of filing this suit was necessarily to effect a division in status between Chinnadorai and his brother Periadorai. In view of some of the earlier cases cited I do not propose to rely on this suit as evidence of division, especially as there is other evidence sufficient to establish it. The lands allotted to him were sold by him and his sons in course of time; and in 1871 when Periadorai had involved himself in difficulties and the zamindari was in the hands of a receiver who was seeking to raise money by the sale of the pannai or home-farm lands, it was reported that Chinnadorai and his family were in the possession of some of these pannai lands as tenants at a favourable rent, and this arrangement was not disturbed. After Chinnadorai's death at the close of 1871 his sons were left in possession of these lands; and during the minority of the late zamindar, as the rent paid by them was in arrears, the Court of Wards decided to sue them for possession and arrears and a plaint was drawn up, Exhibit I, but was not filed. Again on the death of Periasami in 1899 the plaintiff and his brother were similarly left in possession of the lands then in their occupation. Their possession, however, was that of tenants, and was exactly the same as that of their sister Virammal and her family to whom also pannai lands were let on favourable terms. From Periadorai's death until the birth of the late zamindar in 1889 Chinnadorai's family were the next reversioners to the zamindari, a position they again occupied from his succession till his death. They were also very near relations whose claims on his bounty were great. The numerous petitions which they presented to the zamindar for assistance on the occasion of family ceremonies sought his assistance as a matter of grace, and were similar in terms to those presented by other persons, such as their sister Virammal and by mere strangers in whom the zamindar took an interest. In my opinion, the facts that Chinnadorai's family were allowed to occupy pannai lands as tenants and were assisted on the occasion of family ceremonies by the zamindar are entitled to very little weight as evidence that they continued joint in estate with him. In Southern India the test whether the two branches continued joint in worship is inapplicable. On the other hand, the fact that the two branches lived separately, though ordinarily inconclusive, is in my opinion entitled to considerable weight, when the separate living had been going on for seventy years before suit and the existence of joint property at the end of the period is not shown. Exhibit A series, and the other documents referred to in paragraph 126 of the Subordinate Judge's judgment, show that between 1872 and 1897 Periasami and Chinnasami freely alienated their properties without any reference to the zamindar. Exhibit F, which is a petition by Periasami to the Collector, dated. 17th April 1872, alleged that the Veppangulam house had belonged to his father Chinnadorai and that he and his father had been enjoying it for nearly thirty years without dispute and complained that Periadorai was attempting to interfere with his enjoyment, and also with his endeavours to sell his father's lands in satisfaction of his debts. This is opposed to the theory that he and the zamindar were then joint in estate. On the other hand, the fact that Periadorai, who had alienated all his estate and was then living on an allowance from the Court of Rs. 100, tried to assert a claim to the Veppangulam house is of very little weight in view of his desperate circumstances. Exhibit MMMI is open to the same observation, and the fact that Periadorai had included the house in a mortgage of 1854, Exhibit MMM, throws very little light on the state of the family in 1914. He died in 1873 and his son, who succeeded in recovering the zamindari from the alienees, seems to have raised no objection to Periasami and his family dealing freely with their properties by the alienations in Exhibit A and other series. Exhibit XXVII shows that the Veppangulam house, or Periasami's share in it, was sold in a suit on a mortgage executed by him and purchased on 22nd June 1877 for Rs. 251 by one Muthusubba Ayyar, who appears from Exhibit FFF to have been a benamidar for the zamindar. That is a petition complaining that the zamindar's servants had been resisted by Periasami in taking possession, on the ground that delivery had not been given by the Court. Probably the zamindar did not really want to evict his cousins and had only purchased the property to prevent its getting into the hands of strangers. There does not seem to have been any allegation by the zamindar on that occasion that it was not the separate property of Periasami, the mortgagor. Also, as stated by the Subordinate Judge in paragraph 30 of his judgment, Chinnasami afterwards filed a suit against the benami purchaser and Periasami for a half share of the Veppangulam house and succeeded. The decree, Exhibit XXVII(d), states that the suit was brought to recover the scheduled properties which fell to the share of the plaintiff and are being enjoyed by him, and the decree exempted specific portions of the property from the sale apparently as property which had already fallen to the plaintiff on partition. Further, the mortgages and sale-deeds executed by Periasami after his father's death which are found in Exhibit IV series, such as Exhibit IV(p) and IV(q) and others, point to a division by metes and bounds having taken place between Periasami and Chinnasami after their father's death. This is, in my opinion, very strong evidence that they had already become separated in estate from the senior branch. I think the transactions already referred to, and the other transactions mentioned in paragraphs 126 to 128 of the Subordinate Judge's judgment, are sufficient to show that the two branches were separate in status in 1914. In my opinion, the branch of the late zamindar at the time of his death was divided in status from the plaintiff's branch of the family, consequently the zamindari devolved, according to the rule of inheritance applicable under the Mitakshara law to separate property, on his mother. As she left no female issue, the question whether the accumulations should be regarded, as her stridhanam is immaterial, as, even if so, they would devolve on her husband's heirs.
14. Assuming the law of succession to separate property to apply, the finding that the plaintiff is both the representative of the senior branch of his family and the eldest of those who are equal in descent with himself from the common ancestor is sufficient, in my view, to establish his title to succeed on the death of the late zamindar's mother, In the case of succession to separate property the ordinary rule, that to the nearest in blood the heritage belongs, entitles the nearest in descent of whatever branch to succeed in preference to the other claimants. Achal Ram v. Udai Partab Addiya Dat Singh I L.R., (1884) Calc., 511 , a decision of the Privy Council, is an application of the same rule. This rule, however, affords no assistance where, as here, the rival claimants are equal in descent. In that event, the Privy Council has decided in Bhai Narindar Bahadar Singh v. Achal Ram I.L.R., (1893) Calc., 649 , which relates to the same impartible estate as the case just cited, that the person entitled to succeed as preferential heir is the representative of the senior branch. The facts which gave rise to these two decisions may be briefly summarised. Under the Oudh Estates Act, 1 of 1869, one Prithi Pal had been entered in the first and second of the lists prepared under Section 8 as a talukdar under the Act, whose estates according to the custom of the family and before the 13th February 1856 (the date of the Mutiny) ordinarily devolved on a single heir. It was provided by Section 22 that such estates should be descendible in the line of succession prescribed in Sub-sections (1) to (10) of Section 22, and in default thereof under Sub-section (11).
to such persons as would be entitled to succeed to the estate under the ordinary law to which persons of the religion and tribe of such talukdar or grantee, heir or legatee are subject.
15. Prithi Pal was succeeded by his widow, who died in 1870. The estate was then enjoyed by his daughter and her husband Achal Ram. After the daughter's death in 1870, Achal Ram retained possession, and was first sued by Udai Partab who was the representative of the senior line but seventh in descent from the common ancestor. He was nonsuited by the judgment of the Privy Council in Achal Ram v. Udai Partab Adaiya Dat Singh I.L.R., (1884) Calc., 511 on the ground that, though the estate was recognized in accordance with previous family custom as impartible or descendible to a single heir, the single heir must be determined in the circumstances with reference to the rule of Mitakshara as to the succession to separate property. If the succession opened at the death of the widow in 1870 Harbaghat, who was fifth in descent from the common ancestor, was then living, and was the next heir; while, if it opened at the death of the daughter in 1870, there were then living Harbaghat's sons and other collaterals who were sixth in descent, and so nearer than the plaintiff. That case having decided that the succession was to the nearest in blood though belonging to a junior branch, Harbaghat's son Narindar sued to recover the estate, and contended unsuccessfully that the succession opened in 1860 on the death of the widow, when his father Harbaghat was the nearest heir; but it was held by the Privy Council that it opened on the death of the daughter in 1870, that then, nearest collaterals included Harbaghat's son, the plaintiff, and his cousin Jubrag, who were both sixth in descent from the ancestor. As between them the Privy Council held that the estate would go to Jubrag, as he came of a branch senior to the plaintiff's branch. It no doubt may have been, and probably was, the case that Jubrag, the other collateral, not only came of the senior branch but was also older than the plaintiff. That consideration however was treated as immaterial The Act left the succession to the impartible estate in the event which happened to be governed by the ordinary law which included the custom of the family. As this custom did not include the rule of lineal primogeniture the ordinary Mitakshara law of succession to separate property would appear to have been applied; and according to this law, as between collaterals equal in degree, the representative of the senior branch was held to be the preferential heir. It was no doubt suggested by Muttusami Ayyar, J., in Muttu Vaduganatha Tevar v. Dora Singha Tevar I.L.R.(1881) , Mad., 290 , that in such a case the eldest among the heirs of equal degree should be preferred on the ground that he would have a preferential right as regards ceremonies and also to the position of manager if the property had been joint. I agree, however, with the learned Subordinate Judge that, so far as this Court is concerned, the question must be regarded as settled by superior authority. I may add that in my opinion this rule is also superior in convenience, as, having regard to the conditions which prevail here, it is much easier to ascertain who is the senior representative of the senior branch than to ascertain which of a number of collaterals of equal degree was born first.
16. The only other question argued before us was as to which of the properties acquired by the fourth and fifth zamindars should be considered to have been incorporated in the zamindari and to pass with it to a single heir. The recent decision of Rajindra, Bahadur Singh v. Raghubans Kunwar I.L.R., (1918) All., 470 has been cited as deciding that a zamindar cannot incorporate any property in an impartible zamindari, but we think it is not authority for so extreme a proposition. The Crown, in that case, in the exercise of a right now recognized in the Crown Grants Act, had made the estate descendible in a particular manner, and it was held that the holder could not make the same rule applicable to properties acquired by him. As regards estates of persons governed by the Mitakshara law, where estates are by family custom impartible or descendible to a single heir, it has been repeatedly held that it is open to the owner, if so minded, to incorporate his self acquisitions in the impartible zamindari, and this is expressly state in Murtaza Husain Khan v. Muhammad Yasin Ali Khan I.L.R.,(1916) All., 552 , which was decided not very long before the case already cited. I think we must overrule this contention. As to the properties which should be held to be incorporated in the zamindari, I agree with the judgment of my learned brother and with the order proposed by him in both appeals.
Appeal No. 324 of 1918.
17. This is an appeal from the decree of the Subordinate Judge of Tuticorin in Original Suit No. 27 of 1914, brought by the plaintiff, Sendatti Kalai Pandya Chinnathambiyar, claiming for himself the zamindari of Sivagiri, which is an ancient impartible estate in the District of Tinnevelly included in the Schedule to the Madras Impartible Estates Act, II of 1904. The suit was originally brought against Rani Gnanamani Nachiar, the mother of the last zamindar Ramalinga, who took possession of the zamindari on his death. But as she died on 23rd November 1916, when. the suit was pending in the lower Court, it became unnecessary to decide who the preferential heir to the zamindari was as between her and the plaintiff to settle the claim to the zamindari. On her death the dispute about the succession to the zamindari became one between the plaintiff and Gurusami Pandyan who was added to the record of this suit as the second defendant. He has already brought a suit himself, Original Suit No. 48 of 1914, in the same Court, admitting the right of the Rani and claiming to be next reversioner entitled to succeed to the zamindari on her death. The two suits were tried together by consent of parties, and appeal from the decree in the second suit is also before us as Appeal No. 325 of 1918. The first and main question for our decision in this appeal is whether the plaintiff or the second defendant is the man entitled to succeed to the zamindari now.
18. The pedigree of the family attached to the plaint is accepted as correct before us, except as regards the ages of certain persons mentioned in it. It may however be noted as a correction that Nos. 35 and 36 were the wives of No. 25 and not his daughters, As stated in this pedigree, Ramalinga (No. 39), was the fifth and last zamindar. He died in Madras in 1914, leaving no issue and no male heirs in his own line, and it is to him that succession has now to be traced. He was the son of Sangili Veerappa, the fourth zamindar (No. 25), who was himself the son of Varaguna Rama Pandya, the third zamindar (No. 13), who was ordinarily known as Periyadorai and who will be referred to hereafter by that name. He had a younger brother, also a Varagunna Rama Pandya, but known ordinarily as Chinnadorai, under which name he will hereafter be referred to. Ho had two sons, Sendatti Kalai Pandyan (No. 26), ordinarily known as Periyasami, and Varagunna Rama Sendatti Kalia (No. 28), ordinarily known as Chinnasami, besides a daughter Veerammal Nachiar (No. 27). Plaintiff (No. 42) is admittedly the eldest son of Periyasami, and the second defendant (No. 50) is the eldest son of Chinnasami. It will be seen therefore that as grandchildren of Ramalinga's grandfather's brother, they stand in the same degree of relationship or agnateship to the last zamindar. But as only one man can succeed to this impartible zamindari, we have to decide who the preferential heir of the two is. The plaintiff contends that he is to be preferred, because he belongs to the senior line, his father being older than second defendant's father, and furthermore that as between himself and the second defendant he is also the senior in age. The second defendant admitted that plaintiff's father was senior to his father, though at one stage of the case he disputed it; but he contended that the plaintiff was an illegitimate son of his father, being born of an adulterous connexion between his parents and as such he was not entitled to succeed at all, and also that even if plaintiff were a legitimate son of his father, he, the second defendant, was the senior in age to him and that seniority in age and not seniority of the line was the deciding factor in the choice of the heir to the zamindari in the circumstances of this case.
19. On these pleas, the first question we have to settle is the question of fact whether the plaintiff is the legitimate son of his father or the illegitimate offspring of an adulterous connexion as alleged against him. The Subordinate Judge has discussed the question at great length in a carefully considered judgment, and I entirely agree with him that the finding must be in favour of legitimacy.
20. [His Lordship discussed the evidence and proceeded:]
21. Accepting the plaintiff's evidence on the point before us as more reliable I concur with the Subordinate Judge in finding that the plaintiff is the legitimate son of his father.
22. Taking that finding, it follows that plaintiff and second defendant are persons who stand in an equal degree of relationship to the last zamindar from whom descent has now to be traced for the zamindari. It was laid down by their Lordships of the Privy Council, so early as in the Shivagunga case, Katama Natchiar v. The Rajah of Shivagunga (1863) 9 M.I.A., 543 , that in the case of impartible estates, in the absence of a special custom governing the succession to it, the rule of succession must be taken to be that of the ordinary Hindu Law by which the parties are governed, with such modifications only as flow from the impartible character of the estate. This rule was followed in Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar (1872) 14 M.I.A., 570 , and has been accepted ever since. There is no special custom alleged in the present case, and we have thus to turn to the Mitakshara Law by which the parties are governed for the rule of succession. Under that law there is a different line of succession for ancestral property, and for separate or self-acquired property, and accordingly the same difference must arise with regard to succession to impartible estates also. To apply the rules of succession to impartible property one must treat it for a moment as ordinary partible property and see to whom it would pass as such. If it passes to a single individual he or she would be the person entitled to the zamindari. But if it passed to two or more as equally entitled to it, further rules have to be applied to determine which one of them should be selected as the zamindar, as only one person can be the zamindar at a time. If the zamindari is property in which the right of survivorship subsists it would pass like ordinary joint family property by the rule of survivorship, and when there are more persons than one coming within that rule it will, as was held in Naraganti Achammagaru v. Venkatachalapati Nayanivaru I.L.R.,(1905) Mad., 508 , pass to the nearest co-parcener of the senior line and not to the co-parcener nearest in blood to the propositus. This view was approved of by the Privy Council in the Udayarpalayam Case I.L.R.,(1882) Mad., 250, and must be treated as settled. The rule is based on the recognized principle of representation of the father on his death by his sons in taking joint family property. If this rule of succession by survivorship applied to the present case, it is conceded that the plaintiff would be the preferential heir as the eldest son of Periasami whose line is the senior line. In fact he would have excluded the Rani also. At the early stages of this case both the Rani and the second defendant had denied the seniority of Periasami to Chinnasami and the first issue was framed on that plea. But the contention was subsequently given up by the second defendant and the seniority of Periasamr's line was admitted.
23. If on the other hand the zamindari is taken to be the separate property of the last zamindar, as I find later in this judgment, the Mitakshara rule of succession to separate or self-acquired property will apply, and on the death of the last zamindar the Rani would take the estate first, as his mother, there being no nearer heirs, and on her death it must pass to this zamindar's nearest reversioners under the rule that the nearest in blood excludes the more remote. But as both plaintiff and second defendant fall in the category of nearest in blood a further rule has to be applied to choose between them. Plaintiff contends that that rule is the rule of seniority of line, whereas the second defendant maintains that the seniority of age is the proper rule for it.
24. Before however deciding this question, it will be convenient to consider whether the plaintiff or the second defendant is in fact the senior in age, for each claims to be senior to the other. The Subordinate Judge has held that plaintiff is the senior, and I am on the whole inclined to agree with him though the evidence is not so full and satisfactory on this point as on the first question dealt with.
25. [His Lordship discussed the evidence and proceeded:]
26. In these circumstances, I am inclined to think that the Subordinate Judge's finding is right that plaintiff is the senior in age to the defendant and I accept it. On this finding, plaintiff must be held to be the proper heir now to the zamindari in preference to the second defendant, whether the rule of seniority of line or of seniority of age be applied.
27. I may here observe that it was argued by the plaintiff's vakil that even if his client was not the senior in age, and even if we take the zamindari to have been the separate property of the last zamindar, his client would still be entitled to succeed as the representative of the senior line. In other words, he contended that the rule of seniority of line applied where there were two or more reversioners of different lines but of equal degree of relationship to the last holder of the impartible estate, from whom descent has to be traced, competing for the zamindari. He has relied for this contention on the ruling of the Privy Council in Bhai Narindar Bahadur Singh v. Achal Ram I.L.R.(1893) ,Calc., 649 , and that case clearly supports him. Though the impartible estate in that case was one to which the Oudh Estates Act applied, the successor to the last holder had to be found according to Clause (11) of Section 22 of that Act and not according to any of the previous clauses, and under that cause the ordinary Hindu Law of collateral succession had to be applied. Lord Hobhouse who delivered the judgment of the Board says:
It may be, and it has so happened in this case, that the heir according to lineal primogeniture is more remote in degree from the ancestor than other collaterals, or other persons in the line of heirship. If so, the degree prevails over the line according to the classification under the Act; though if two collaterals, or persons in the line of heirship, are equal in degree, then, as the property can only go to one, recourse must be had to the seniority of line to find out which that one is.
His Lordship again says:
But Jubraj comes of a branch senior to the branch of the plaintiff; and therefore if the estate can only go to one, it will go to that one who represents the senior branch.
28. The pedigree of the family is given in Achal Ram v. Udai Partab Addiya Dat Singh I.L.R., (1884) Calc., 511 , and that case read with Bhai Narindar Bahadur Singh v. Achal Ram I.L.R.(1893) Calc., 619, shows clearly that in a case of collateral succession though the rule of seniority of line is not applicable in the first instance but the ordinary Mitakshara rule of nearness in blood applies, the former rule applies for the choice of one from among those equal in degree. The ruling in Bhai Narindar Bahadur Singh v. Achal Ram I.L.R.,(1893) Calc., 619, thus seems to cover the exact position in the case that we are considering, and following it the plaintiff should be declared to be the preferential heir, irrespective of any question of seniority in age even if the succession is a collateral one. The learned vakil for the appellant tried to distinguish this case from the present case, on the ground that it was decided on some question of custom or on some admission of the plaintiff that Jubraj was the preferential heir if the succession was held to open only on the daughter's death. But there does not seem to be any basis in the judgment of their Lordships for these contentions, nor does it appear that their Lordships were deducing the rule from anything in the Act or from anything peculiar to the estate in suit. He also drew our attention to the judgment of Muttuswami Ayyar, J., in Muttu, Vaduganadha Tevar v. Dora Singha Tevar I.L.R.,(1881) Mad., 290, and particularly to the learned Judge's observations on page 327. But, in that case, the dispute was between daughter's sons of the last male holder and it was as between them that the rule of seniority of age was applied. That case is not in point here, and we are relieved from the necessity of discussing on general principles of Hindu Law what rule of preference should be applied between collaterals of equal degree but of different lines as we have the high authority of the Privy Council to prefer the senior line. In this view, even if the finding that the plaintiff is the senior in age turns out to be incorrect, he must still be held to be the rightful zamindar now, as he is admittedly of the senior line.
29. The next question we have to consider is whether the items of properties, included in issues 16 and 17, claimed by second defendant to be partible property and not part of the zamindari are really so or not. Issue 16 refers to acquisitions said to have been made by Sangili Veerappa, the fourth zamindar, and issue 17 to those of Ramalinga, the fifth and last zamindar, respectively. The Subordinate Judge found some to be zamin properties and the rest to be partible properties, and both sides have appealed against the finding in so far as it is against them, the respondents Nos. 1, 4 and 5 appealing by way of memoranda of objections.
30. Before considering this question in detail, it is necessary to notice an argument advanced by the learned Advocate-General, for the appellant, that it is not legally competent to a zamindar to add new properties to his estate, as he will thereby be changing the line of descent with, reference to them to a single heir, a power which it is contended, he is not possessed of. For this argument reliance was placed on the observations of the Privy Council in Rajindra Bahadur Singh v. Raghubanskunwar I.L.R.,(1918) All., 470, at page 480, where their Lordships quote and agree with the opinion of Sir Edward Chamier as Judicial Commissioner of Oudh where he says:
I take it that is settled law that a subject cannot make this property descendible in a manner not recognized by the ordinary law and that he cannot subject it to a rule of descent such as is contained in the primogeniture sanad granted to Girwar Singh. If thin is so, it appears to me to follow that Balbbadder Singh could not by express declaration, still less by mere volition, whether actual or presumed, subject property acquired by him to the rule of succession entered in the primogeniture sanad granted to Girwari Singh.
31. That case, it seems to me, has really no bearing on the case before us. It related to a taluk in Oudh claimed under a special grant by the Crown with a condition of lineal primogeniture imposed on it by the Crown at the time of the grant. Though the estate was registered under list 2 of Section 10 of the Oudh Estates Act it did not previously descend according to any family custom of primogeniture. The validity of the grant was considered by the Privy Council in Sheo Singh v. Raghubans Kunwar I.L.R.,(1905) All., 631 and it appears clear from that judgment that the Crown was imposing for the first time a now line of descent by lineal primogeniture. An addition to that estate will make the special line of descent apply to it. The circumstances of the present case are however entirely different. We have here an ancient zamindari, which descends according to the ordinary Mitakshara Law with only the modification necessary to select a single heir out of a class of heirs when that contingency arises, also derived from that law. When a zamindar adds further property to his zamin all that he can be said to do is to impose on it a condition of impartibility which he is competent to do. I do not think he can be said to impose thereby a new line of descent on the property different from that of the ordinary law. It is not uncommon for provident zamindars in South India to aggrandise their estate by new additions of property, and the only question to be decided in such cases is to find out whether it was intended by the acquirer to incorporate them with the original estate. That has been laid down in several rulings: see Lakshmipathi v. Kandasami I.L.R., (1893) Mad., 54, Ramaswami Kamaya Naik v. Sundaralingaswami Kamaya Naik I.L.R.,(1894) Mad., 422, Parbati Kumari Debi v. Jagadis Chunder Dhabal, I.L.R.,(1902) Cal., 433, and Janki Prasad Singh v. Dwarka Prasad Singh I.L.R.,(1913) All., 391, the last two being rulings of the Privy Council. In the last case their Lordships expressly say, on page 40:
As has been pointed out by this Board in the case of Parbati Kumari Debi v. Jagadis Chunder Dhabal I.L.R.(1902) , Cal., 433 , the question whether properties acquired by an owner become part of 'the ancestral estate for the purpose of his succession' depends on his intention to incorporate the acquisitions with the original estate.
32. Following those rulings, the legal argument addressed to us on the point must I think be overruled and we must consider on the evidence how far the intention to incorporate is made out with reference to the various disputed properties.
33. With regard to properties included in issue 17 and declared by the Subordinate Judge to be partible, no serious attempt was made before us to dispute the finding as regards properties outside the zamindari. There is no proof that they were incorporated by Ramalinga with the zamin. In fact the power-of-attorney, Exhibit XIV (a), which he executed points the other way as observed by the Subordinate Judge. The finding with reference to them must therefore be accepted. But the finding as to the other items included in issue 16 and items in issue 17 has been strongly contested.
34. The first item which is plaint Schedule III, item I, is the Sivagiri palace itself with its site and attached buildings, where the zamindars have been residing all along. It is in fact the official residence of the zamindar at his headquarters. It was brought to sale in execution of the decree in O.S. No. 1 of 1867 against the then zamindar, and was purchased by a Chetti and was taken possession of by him in 1874. In 1882, Sangili Veera, the next zamindar, bought it back from the Chetti by Exhibit V. He used it till his death for his zamindari palace and his son used it similarly after him. In these circumstances I agree with the Subordinate Judge that the proper inference is that it was made part of the zamin estate. The fact that Exhibit V recites that the vendee is given rights of sale, gift and alienation in the property seems to me to be immaterial, as such a statement would usually be made by the vendor in any conveyance.
35. The next item, Schedule III, item 2, is the Teppakulam (or tank) and the adjacent buildings. They seem to stand on the same footing as the palace, as the Subordinate Judge remarks: they are near the palace and were used by the zamindars and were never let out. They were purchased under Exhibits 12(a) and 12(b) in 1877 for Rs. 38-14-0 and Rs. 18. Being neighbouring properties which have not been separately enjoyed, they may, I think, be reasonably treated as appurtenant to the palace itself.
36. The third item, plaint Schedule III, item 40, is a bungalow in Courtallam, a neighbouring hill sanitarium. It was purchased in 1877, under Exhibit XII (h). It is altogether outside the zamin limits. There is nothing in the sale-deed to indicate that it was intended to be used as a hill residence of the zamindar for the time being, and there is no evidence that it was generally or exclusively used by the zamindar; in fact it was let to a stranger, when the Court of Wards was in management. There does not seem to be any point of difference between this property and the bungalows purchased by the fifth zamindar in Courtallam and in Ootacamund, another hill station, except that it was purchased by the father, Sangili. We have held the latter to be partible property and I think we must consistently hold the former also to be property of the same kind.
37. The next items, plaint Schedule III, items 42, 44 and 45, are a bungalow in Sankaranainarkoil and another in Srivilliputtur with another small building there. These are the headquarter stations of the two taluks in which the zamindar's property lies, and the zamindar and his officials have been using them when going to transact zamindari business, as they have often to do. They have not been let out or used for any other purpose. In these circumstances, I am inclined to agree with the Subordinate Judge that though these properties are outside the zamindari limits, they should nevertheless be hold to have been acquired for zamin purposes and made part of the zamin estate for its use.
38. The next items are items 43, 47 and 48 of plaint Schedule III. They are all outside the zamin boundaries. The burden is therefore on the plaintiff to show that they were incorporated with the zamindari. There is no evidence when they were acquired, and in the case of items 43 and 47 there is nothing to show that they were incorporated into the zamindari or used for zamin purposes. As regards item 48, there is, however, Exhibit UU, which seems to show that that item was used for zamin purposes so long ago as 1885. That item, I think, may therefore be reasonably considered to have been incorporated with the zamindari, but not the others, which will therefore be treated as partible property.
39. The next items are items 6, 15, 20, 22 and 30 referred to by the Subordinate Judge in paragraphs 142 and the end of 149 of his judgment. He held them to be impartible properties. They are all within the zamin limits, and being additions to the zamindari property must be hold to have been acquired for the zamindari on the view stated below regarding the next items.
40. The next items are those in plaint Schedule IV(a) to IV(q); they are pannai lands or lands under the cultivation of the zamindar himself. They are of three classes, nanjai lands, and topes or garden lands purchased by the zamindar, and other lands obtained when commuting the rents of some of the estate lands into money. They are all within the zaminari limits and are all properties which were already in the holding of the zamindar or over which the zamindar had melwaram rights. What was subsequently acquired by the zamindar was only the kudivaram rights in them. I agree with the Subordinate Judge that in the absence of clear evidence that they were dealt with as the zamindar's private property they must be held to be part of the zamin. The cases referred to by the Subordinate Judge--Lakshmipathi v. Kandasami I.L.R.(1893) , Mad., 54, Ramaswami Kamaya Naik v. Sundaralingaswami Kamaya, Naik I.L.R.,(1894) Mad., 422 , Sarabjit Partap Bahadur Sahi v. Indarjit Partap Bahadur Sahi I.L.R.(1905) , All., 203, Udayarpalayam CaseI.L.R., (1903) Mad., 508 , and Visvanathaswami Naicker v. Kamalu Ammal (1915) M.W.N.,968 --support his conclusion. The properties were zamin properties to start with and the subsequent acquisitions only resulted in an enlargement of the zamin rights in them. As the new rights acquired were not kept separate, they must be taken to have passed as part of the zamindari. It was pointed out that in some of the documents of purchase it is expressly mentioned that the purchase was for the zamindari, and it was argued that we must therefore assume that in cases where such express recitals do not occur the rights purchased were intended to be kept separate as the acquirer's private property. I do not think that it is a valid argument, for even in cases falling in the latter class there are several lands in which the rights obtained by purchase are not claimed to be private property. I therefore agree that all the lands in Schedules IVa to IVq are part of the zamin estate.
41. The next items, those in Schedules Vb to Vg, are ayan patta lands in Government villages belonging to the zamindar. They are ryotwari lands outside the zamin limits and so they could not have been part of the original zamindari. Plaintiff must therefore prove that they were incorporated with the zamindari. There is, it is true, no evidence when they were acquired but that will not justify us in treating them as part of the zamin. I think in the absence of proof they must be regarded as partible properties and not part of the zamindari. Item in Schedule Va was allowed as partible property and it was not argued to be impartible property.
42. It follows then that the Subordinate Judge's finding on this part of the case must be accepted, except as to the house in Courtallam, items 43 and 47, 6, 15, 20, 22 and 30 and the ayan patta lands, which I think should all be included among the partible properties.
43. It may be noticed here that issues 18 to 22 were admittedly not tried in the lower Court as persons other than those who are parties to the suit are interested in them. The title to the properties included in them was left to be settled in a future suit. The decree should accordingly be modified on the point.
44. The next question to be dealt with is whether the award of past profits to the plaintiff from the assets of the first defendant is correct. The amount is large. It is strongly contended that the first defendant was the rightful zamindarni during her lifetime and that therefore she was not bound to account for any profits. If she was the rightful zamindarni the accumulated income of the zamindari during her lifetime, which was collected and paid into Court by the receiver, will be her absolute property; and on her death only a one-sixth share in it, will go to the plaintiff as one of her six heirs. The decision of this question depends on whether the zamindari should be looked upon as the separate property of the last zamindar in which plaintiff had no right of succession by survivorship or whether it was one in which he had such a right. If it is the latter, it is conceded that the plaintiff will be entitled to the whole of the profits as he would have excluded the Rani in the succession, as I have already pointed out. If it is the former, it is equally conceded that plaintiff would be entitled only to a one-sixth share in the money. We have, therefore, to decide in this connexion the question above stated, which it was found to be unnecessary to decide in connexion with the succession to the zamindari itself, as the Rani died during the trial.
45. It was claimed by the respondent's vakil that as Periadorai succeeded to the zamindari as the daughter's son of the Istimrar zamindar (No. 10) in the plaint pedigree, his undivided brother Chinnadorai obtained at the same time a right of succession by survivorship in it, according to the ruling of the Privy Council in the Jaggampet case, Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu I.L.R,(1902) Mad., 678 , read with Katama Natchiar v. The Rajah of Shivangunga (1863) 9 M.I.A., p. 543 , and that that right has descended to his grandson the plaintiff and is still subsisting. The first answer given by the second defendant to this contention was that Periadorai took the zamindari not as the heir but as the whole legatee under the will of the old zamindar, Exhibit 21, and. thus his brother got no interest in it at all.
46. The Subordinate Judge has held this will to be a spurious document, and I think he is right.
47. [His Lordship discussed the evidence and proceeded:]
48. For these and other reasons stated in great detail by the Subordinate Judge, which I accept, I think that it is quite unsafe to act on Exhibit 21 as a genuine document and that we must leave it out of consideration.
49. The position then is that Periadorai succeeded to his maternal grandfather's estate as his daughter's son. If it were partible property we are bound to hold on the authority of the Jaggampet Case I.L.R,(1902) Mad., 678, that he and his undivided brother Chinnadorai would have taken the property jointly with the rights of survivorship between them; and applying the rule in Kalama Natchiar v. The Rajah of Shivangunga (1863) 9 M.I.A., p. 543 , Chinnadorai would have had a right to succeed by survivorship if Periadorai had died before him without male issue and undivided from him. It was however argued that this ruling which was given with reference to partible property should not be extended to an impartible estate because it is said there is co-parcenary in such property. No doubt an impartible estate is the holder's separate property, which he can deal with as he likes except in so far as he is restrained by statute law, such as the Madras Impartible Estates Act. That is the effect of the rulings of the Privy Council in Sartaj Kuari v. Deoraj Kuari I.L.R.(1888) , All., 272, Sri Raja Rao Venkata Surya Mahipati Ramakrishna Rao Bahadur v. The Court of Wards I.L.R.(1899) , Mad., 383 , and Tara Kumari v. Chaturbhuj Narayan Singh I.L.R(1915) ., Calc., 1179 . Even a right of maintenance does not exist except by custom. See Rama Rao v. Rajah of Pittapur I.L.R.,(1918) Mad., 778 , decided recently by the Privy Council. Nevertheless, these considerations do not affect the point before us as the rule of succession to an impartible estate has to be deduced not from the existence of any real co-parcenary in that estate but from a notional coparcenary treating it for the purpose as partible property.
50. Mr. Justice Miller has explained the position very clearly in his judgment in Visuanathaswami Naicker v. Kamulu Ammal (1915) M.W.N., 268 , and I accept his statement of the law on the point. It thus follows that Chinnadorai had a right at one time to succeed to the zamindari by survivorship excluding the widow and other female heirs. That however is not, the question we have to decide. It is at best only a step in the argument, for the appellant. The question before us is whether as between plaintiff and the last zamindar, Ramalinga, there was any right of survivorship. We must, therefore, consider the effect of the subsequent events proved in the case.
51. Periadorai was a member of a joint family, consisting of himself, his brother, his father and his uncle, which owned some little ancestral property. Periadorai succeeded to the zamindari in 1835, but his father acting under Exhibit (10m) looked after it for him for some years. About 1842 Periadorai wished to assume management and it seems to have led to quarrels between him and his father and others. It would appear from Exhibit 10 that the Collector intervened in 1843 to settle the dispute, and we find in Exhibit N series that the zamindar was put in possession of the zamindari in 1814 and his father separated from him and went away to live in Veppangulam: see Exhibit K. In 1848, Chinnadorai brought a suit against the zamindar for partition and delivery of a half share in the zamindari and in a certain house and other personal property of the zamindar. The zamindar pleaded in defence impartibility, and also an agreement of 1843 by which he alleged his brother gave up all his claims against the estate. Exhibit O is the judgment in that suit and Exhibit O1, the judgment on appeal. A stamped agreement of 1843 was filed in the case: see item (1) in the list of defendant's documents. The trial Court held that the plaintiff had accepted by that agreement 'a specific allowance from the defendant in full of all claims' and rejected his claim to a share in the personal property on that ground: see paragraph 6 of Exhibit O. In the Appeal, Chinnadorai referred to the agreement and said that the words 'no right whatever to the zamindari' were subsequently added to the document after he had signed it and the agreement itself was extorted from him. The Appellate Court, however, confirmed the judgment of the first Court holding that it was 'very much in accordance with the facts and law of the case.'
52. Exhibit 44(a) is now produced by the second defendant as the correct copy of the agreement of 1843 filed in that suit. The Subordinate Judge holds that it is not proved. But whether this copy is properly proved or not, it is clear from the recitals in Exhibits O and O1 that there was an agreement executed by Chinnadorai in 1843 by which he renounced all his claims to the zamindari and the zamindar's personal property in return for an allowance agreed to be given to him. It is sufficient for this case to find that there was such an agreement as above stated.
53. At this time Chinnadorai was living in Veppangulam palace. After his father's death we find him alienating ancestral properties without any reference to Periadorai. Some of the properties alienated belonged to his uncle who had also died; they were in the uncle's patta: see Exhibits IVa and IVb. Exhibits IVc, IVd, IVf and IVg are similar alienations of other ancestral properties. He was also making acquisitions separately for himself: see paragraph 126 of the Subordinate Judge's judgment where the documents are all collected. After his time we find his sons Periaswami and Chinnaswami living separately from each other and holding separate pattas and selling properties separately: see Exhibit A series; this would indicate that probably they became divided between themselves.
54. The Veppangulam palace which was used as the residence of Chinnadorai and his branch, and which is now admitted to be a part of the paternal estate was, it is true, included by Periadorai in a mortgage executed by him in 1854, Exhibit MMM. But for some reason this attempt to claim the property failed, for we find in 1877 the property sold in Court-auction for Periaswami's debt, when his brother Chinnaswami filed a suit and got his half share in it released--see Exhibits 27 and 27(d). No claim was made by the zamindar to a share as he would have done if it was his joint family property in which he had a share. On the other hand what he did was to buy it as Periaswami's property, through his agent Muthusubbier: see Exhibit 27(a). Exhibit MMM1 and MMM2 referred to by the Subordinate Judge merely show that the zamindar was helping Chinnaswami in repairing the building and the wall. As regards the paternal ancestral properties, therefore, except by the inclusion of Voppangulam in Periadorai's mortgage in 1854, there is no evidence whatever of any interference by Periadorai or his descendants with them or of any joint dealings with reference to them.
55. No doubt, as stated by the Subordinate Judge in paragraph 130 and 131 of his judgment where all the documents are mentioned, there were maintenance grants made to Chinnadorai and his descendants from the zamindari, and when they were temporarily resumed, grain was given in substitution. The zamindar also gave occasional grants of timber, fuel, paddy and money. All those however seem to have been made out of grace, as some of the documents expressly say. They were made not only to the male members but also to the ladies of the family, showing that they were not made in recognition of any right of co-parcenary. We may also take it that the members of the zamindar's family and his brother's family were exchanging visits from time to time, as the Subordinate Judge finds in paragraph 132.
56. The question then is whether an this evidence we should find that the two branches were divided or remained undivided. Though there is no proof of a formal partition, I consider that the long course of separate living and separate dealing with properties by each branch, and the absence of proof of any joint dealings at all regarding them, coupled with the fact that Periaswami and Chinnaswami, the sons, apparently also became divided between themselves are strong evidence in support of a finding of complete separation, between the two branches of Ramalinga and of the plaintiff. The way in which Veppangulam palace was dealt with in 1877, as referred to by me earlier, is very significant in this connexion. There was also admittedly separation in food and in worship. But as there was no commensality from the very first as regards worship, separateness of worship may not count for much, But I think there is enough evidence to justify a finding of separation, at any rate in status and as regards all partible properties. It may be that the zamindar's branch, being very well off, did not care to claim any rights in this small paternal ancestral property. But that does not really affect the question. It was then argued that whatever the position may be with reference to the general partible properties of the family the separation regarding them cannot affect the interest of the plaintiff and his branch in the zamindari property, in other words, that the right they originally had to succeed by survivorship is still subsisting, as the zamindari was not the subject matter of any of the transactions from which division has been inferred. The Subordinate Judge has accepted this argument. But I am unable to adopt his conclusion.
57. I may dispose of, first, the argument that the maintenance grants made from time to time from the zamindari assets to Chinnadorai and his descendants have expressly kept alive their right of succession. That junior members have no right of maintenance by law in the zamindari is now settled by the decision of the Privy Council in Rama Rao v. Rajah of PittapurI.L.R., (1918) Mad., 778 , confirming the decision of this Court in Sri Rajah Rama Row v. Rajah of Pittapur I.L.R.(1916) , Mad., 396. It has not been shown that in this zamindari there is any customary right to maintenance. It must therefore be taken that the maintenance grants in this case were not made in recognition of any rights but were made as matters of grace; and they cannot therefore be relied on as keeping alive any right of succession. I am unable to agree with the Subordinate Judge's view that it was necessary to show that there was an express division 'as regards the zamindari itself' to affect plaintiff's right to succeed by survivorship. That position I think cannot now be maintained after the recent ruling of the Privy Council in. Tara Kumari v. Chaturbhuj Narayan Singh I.L.R.,(1915) Calc., 1179.. The Subordinate Judge has, in my opinion, not properly appreciated the effect of that ruling. In that case, their Lordships overruled the contention that an express abandonment of the right to succeed or a partition directly affecting the impartible estate was necessary to put an end to the right of succession by survivorship in the zamindari and to let the widow come in. Their Lordships held that a complete separation in worship, in food and in estate, was proved in the case generally and not particularly with respect to the impartible estate, and gave effect to that finding by preferring the widow's right to succeed. They point out that the Thakur's brother, Bhupat, and his son had at no time any co-parcenary rights in the impartible estate in the bands of the Thakur. Laliteshwar Singh v. Rameshwar Singh I.L.R., (1909) Calc., 481, in which it was held that as regards an impartible raj there could be no separation in estate as there was nothing on which such separation could operate, as the interest of the junior members of the holder's family was only a spes successionis, was cited in argument to their Lordships, and though it is not referred to in the judgment it must be taken to have been overruled. No doubt the view taken in the Calcutta case is a possible view but that view was not accepted by their Lordships. A general partition between the zamindar and the other members of his joint family putting an end to their co-parcenary must, I think, be now held to put an end to their interests, if any, in the impartible estate also.
58. An attempt was made to reduce the importance of this ruling by suggesting that it only embodied a finding of fact as to separation, and two recent decisions--Rani Jagadamba Kumari v. Thakur Wazir N. Singh (1917) 2 Pat L.J., 239, and Baijnath Prosad Singh v. Tej Bali Singh I.L.R.,(1916) All., 590 were cited for the purpose. No doubt in every case the question whether there has been a complete separation or not is one of fact to be decided on the evidence in it. But when that fact is found, and it is decided that when the succession opened there was no co-parcenary between the last holder and the person who claims to be his successor, the ratio of the rule of succession by survivorship is gone and succession must then be traced as between divided members.
59. Applying this view to the present case I think it must be held that the plaintiff had no right of succession by survivorship in the zamindari, as I find that he and the last holder were completely separated from each other. The Rani, therefore, succeeded to the zamindari in preference to him and the income during her life was thus her property and plaintiff can claim only a one-sixth share in it as one of her heirs. It was faintly suggested that as she had not drawn it and spent it, it must be taken to have been incorporated by her with the zamindari. Her inability to deal with it was due to the action of the Court in appointing a Receiver and not to any act of volition on her part; and so no inference of any intention of hers to leave it unspent for the benefit of the estate can be drawn. The Receiver of Court holds property for the person rightfully entitled to it and the money collected by him must therefore be treated as the Rani's absolute property. The decree of the lower Court must be modified to give plaintiff only a one-sixth share in the profits that accrued from the impartible estate up to the death of the Rani, he, of course, being entitled to the whole of it thereafter.
60. No other questions or issues were argued before us and I have therefore not dealt with any of them.
61. In the result the decree of the lower Court will be modified with reference to item 40, Schedule III, the Courtallam Bungalow, items 43 and 47, 6, 15, 20, 22 and 30, the Ayyan patta lands in Schedules Vb to Vg, and the properties involved in issues 18 to 22 and past profits in accordance with the findings above stated. In the partible properties and in the outstandings and in the past profits that accrued during the Rani's lifetime, there will be a declaration that plaintiff and the defendants Nos. 2 to 6 are each entitled to a one-sixth share; and a final partition decree will be drawn up by the Subordinate Judge regarding them.
62. As regards the rest of the property the decree of the lower Court must be confirmed. The appeal and the Memorandum of Objections are thus allowed in part and dismissed in part. As regards costs I direct the appellant and the first respondent to pay and receive proportionate costs of the appeal and under Rule XLI of the Rules of Practice fix the appellant's vakil's fee at Rs. 1,000 and the first respondent's, who has succeeded in the main, at Rs. 5,000. In the Memorandum of Objections of the first respondent, he and the appellant will also pay and receive proportionate costs. The costs of the fourth and fifth respondent in the appeal and their own Memorandum of Objections proportionate to their success will come out of the partible estate.
Appeal No. 325 of 1918.
63. This is the appeal from the suit brought by Gurusami Pandian for a declaration that he was the nearest reversioner entitled to succeed to the zamindari on the death of the Rani Gnanamani, the mother of the last zamindar who was in possession then. It is now settled that such a declaration cannot be claimed and should not be given: see the ruling of the Privy Council in Janaki Ammal v. Narayanasami Aiyer I.L.R.,(1916) Mad., 634 .
64. Furthermore, we have found that he has no such right in the connected Appeal. This Appeal therefore fails and must be dismissed. No costs.