Alfred Henry Lionel Leach, C.J.
1. Three of these seven appeals, namely, Nos. 413, 230 and 301 of 1943, raise questions with regard to the succession to the zamindari of Bodi-naickanoor in the Madura District, which from ancient times has always been regarded as impartible and was declared so to be by the Madras Impartible Estates. Act, 1904. Two of the appeals Nos. 230 and 302 of 1943, call for a decision on the question whether the village of Boothipuram, which admittedly formed part of the estate before 8th May, 1890, became the private property of a member of the joint family. Three of the appeals, Nos. 302, 355 and 356 of 1943, relate to the present title to certain pannai (home-farm) lands and buildings thereon which had also belonged to the estate. There were four suits, which were tried together by the District Judge of Madura, who gave his findings in two judgments, one dated 22nd February, 1943 and the other dated 7th April, 1943. The appeals can conveniently be dealt with in one judgment as some of the facts are common to all of them.
The following pedigree will be helpful in appreciating the facts:
2. It will be noticed that some of the persons named in the pedigree are described as parties. These descriptions are taken from O.S. No. 6 of 1941, which has been regarded as the main suit. We shall as far as possible adhere to these descriptions in the judgment.
3. In 1862, when the narrative opens the joint family to which this impartible estate belonged had five branches. Succession to the estate had always been governed by the rule of lineal primogeniture, subject to a family custom according to which a younger son by a senior wife was preferred to an elder son by a junior wife. The learned District Judge found this custom to be proved and the judgment in this respect has been accepted by all parties. By reason of the custom the estate devolved on T.B. Kamaraja Pandia Naicker (hereinafter referred to as Kamaraja No. I), the son by the senior wife, on the death of his father the representative of the first branch. Kamaraja No. I died on the 15th December, 1888. The next in succession was his brother Vadamalai, who was a son by the junior wife. Vadamalai was regarded as being mentally deficient, although in O.S. No. 31 of 1902, to which further references will be made later, it was held that he was not debarred from succession by reason of mental affliction. The representatives of all the five branches regarded him as being debarred from succession for this reason and he was passed over without any protest. In the present litigation all the parties have regarded him as being unfitted for the gadi and the appeals have proceeded on this basis. He died in 1901 without male issue. There were no other male descendants of the first branch and consequently that line of succession became extinct.
4. As Vadamalai had been passed over, on the death of Kamaraja No. I, the next in succession was Kandaswami Naicker, the eldest male of the second branch. Kamaraja No. I was survived by his widow Kamaluammal. She was a young woman, but of very forcible character. On her husband's death, she produced what purported to be a will of her husband under which he left the estate to her and gave her a power to adopt a son to him. In O.S. No. 31 of 1932, to which all the members of the joint family were parties, the will was held to be a forgery, but it served the purpose of inducing the members of the family to agree to a family arrangement under which she was to remain in possession of a large part of the estate during her lifetime. The judgment of the Privy Council in Sartaj Kuari's case (1888) L.R. 15 IndAp 51 : I.L.R. 10 All 272 was delivered on the 21st January, 1888. It was there held that the holder of an impartible estate had a right of absolute alienation, unless there was a custom to the contrary or by the nature of the tenure. It was not until the First Pittapur case2, that the Judicial Committee actually held that the holder of an impartible estate had a power of leaving it by will, but that was the logical deduction from the judgment in Sartaj Kuari's case (1888) L.R. 15 IndAp 51 : I.L.R. 10 All 272 . Sir Tej Bahadur Sapru, on behalf of the second defendant, has suggested that it was the judgment in Sartaj Kuari's case (1888) L.R. 15 IndAp 51 : I.L.R. 10 All 272 , which induced the male members of the family to enter into the agreement with the widow and this suggestion has not been repudiated by any of the learned Counsel appearing in these appeals. In our opinion this is the only possible explanation for the course which those in order of succession decided to take after the death of Kamaraja No. I. It has been shown that they were being advised by eminent counsel of the Madras Bar, who must have appreciated the significance of the judgment in Sartaj Kuari's case (1888) L.R. 15 IndAp 51 : I.L.R. 10 All 272 .
5. On the 18th December, 1888, Kandaswami, the representative of the second branch and the person entitled to succeed to Kamaraja No. I after Vadamalai, who by common assent was mentally unfitted and in fact preferred no claim to the gadi, made a statement to the Deputy Collector on general duty in the Madura District in which he stated that he had no objection to Kamaluammal succeeding to the zamindari and that she was competent to administer it. He also stated that Vadamalai was of unsound mind and that he was not aware of the execution of any will by Kamaraja No. I. On the same day similar statements were made to the Deputy Collector by Sundara Pandiya (the representative of the third branch), Kulasekara No. I, (the representative of the fourth branch), Chokkalingaswami (the representative of the fifth branch) and Bangaruswami (also a member of the fifth branch). The statement of these persons that they did not know of the will is certainly open to question. On the 19th December, 1888, Kamaluammal herself made a statement to the Deputy Collector in which she referred to the will. In fact she placed the Deputy Collector in possession of the document and intimated that she intended to adopt a son whenever she thought fit to do so.
6. On the 19th December, 1888, Kandaswami, Sundara Pandiya, Kulasekhara No. I and Chokkalingaswami made a joint statement to the Deputy Collector in which they committed themselves to these statements:
Thirumalai Bodia Kamaraja Pandia Naicker Avergal, who was the zamindar of Bodinaickanoor aforesaid, died of rheumatism from which he was suffering on the morning of the 15th instant. We four persons, are his heirs to succeed and yet we agree to his widow Kamaluammal's succeeding to and enjoying the abovesaid zamin and all other properties save the undermentioned lands set apart for our maintenance. Remission of the tirwah of the said lands allowed to us and of the tirwah of the lands registered in our names and enjoyed till now should be granted to us.
7. In this statement they gave a description of the lands which had been allotted to them for their maintenance. They are pannai lands adjoining two tanks, named Bangaruswami tank and Marimoor tank respectively. The total area measured about 350 acres. These pannai lands are not the pannai lands the ownership of which is now in dispute in these appeals. It is admitted that the lands referred to in this joint statement were by common consent of all the members of the family given absolutely to the four persons mentioned for their maintenance and the maintenance of their heirs and that they no longer form part of the zamindari.
8. On the 5th January, 1889, the Deputy Collector made a report to the Collector on the statements made to him by the membersof the family and forwarded to him the will set up by Kamaluammal. He expressed the opinion that the will was genuine and that the widow was capable of managing the estate. On the 9th January, 1889, the Collector himself recorded statements made by the representatives of the third, fourth and fifth branches of the family. They were all in keeping with the statements which they had made to the Deputy Collector. Kandaswami the representative of the second branch, was not examined by the Collector until 14th January, 1889 and in his statement on that occasion he repudiated what he had said to the Deputy Collector. He stated that he had made and signed his first statement when he was ill and ' drowned with sorrow ' and that he did not know whether it was read to him or not. He also repudiated his signature on the joint statement made to the Deputy Collector on the 19th December, 1888. He alleged that his signature to that statement was a forgery. It is obvious that he was then repenting of his decision to forego his right to immediate possession of the zamindari as the nearest male heir to Kamaraja No. I. On the 1st May, 1880 he filed O.S. No. 16 of 1889 in the Court of the Subordinate Judge of Madura (West). The defendants to the suit were Kamaluammal and the Collector. He averred that according to the Hindu law, custom and the law of primogeniture he was entitled to succeed to the zamindari and to all its appurtenances. He asked for a declaration to that effect and a decree giving him possession of the properties. In her written statement Kamaluammal besides setting up the forged will averred that her deceased husband was separate in food, residence, interest and estate from the plaintiff and his uncles, that they had no coparcenary or joint right in the zamindari and that he was the sole proprietor of it with absolute power of disposition over it. On this basis she claimed to be entitled to the estate, although she was willing to abide by the agreement embodied in the joint statement of the representatives of the four branches to the revenue authorities on the 19th December 1888. Her pleas that the family had become divided and that her husband was entitled to the estate in his own right were certainly false.
8. On the 6th May, 1890, Kamaluammal arrived at a settlement with Sundara Pandiya, the representative of the third branch, under which he was to have the village of Dombucheri, his share in the pannai lands set aside for the maintenance of the second, third, fourth and fifth branches and to receive from her Rs. 3,000 in cash. In consideration of this he surrendered to her whatever rights he had in the other properties of the estate. The deed, which has throughout been referred to as ' the deed of release ' to which description we shall adhere, contains these provisions:
(3) ...Whatever rights over the said zamin properties and in all the other above-mentioned properties the said Sundara Pandia Naicker Avergal might possess, he gives up such rights absolutely in favour of the said Kamaluammal Avergal and her heir enabling them to enjoy them with power of alienation thereof by way of gift, sale, etc. (4) And whatever rights the said Kamaluammal might possess over the Dombucheri village and over the lands lying under the irrigation of the Bangaruswami tank and the Marimoor tank and specified in the third column of the schedule hereto, which are given up to the aforesaid Sundara Pandia Naicker Avergal, the said Kamuluammal Avergal hereby gives up such rights absolutely in favour of the said Pandia Naicker Avergal and his heirs, enabling them to enjoy them with the power of alienation thereof by way of gift, sale, etc. (5) The said Kamaluammal and her heirs shall have no claim at all to the properties shown as belonging to Sundara Pandia Naicker Avergal as aforesaid and the said Sundara Pandia Naicker Avergal and his heirs shall have no claim at all to the properties shown as belonging to the said Kamaluammal Avergal.
9. On 8th May, 1890, two days later, Kamaluammal and Kandaswami entered into an agreement of compromise and this agreement was made a decree in O.S. No. 16 of 1889. It is hereinafter referred to as ' the compromise decree.' Clauses 1 to 8 are of great importance and we will quote them in extenso.
Clause 1.--The first defendant shall enjoy during her lifetime the plaint mentioned Bodinaicka-noor zamindari, with the incomes thereof and all its appurtenances, as also the buildings in her holding within the Bodinaickanoor Palace attached to the said zamin. The first defendant shall have no right whatever to make any alienations of the said properties prejudicial to the plaintiff's interest.
Clause 2.--Excluding the village of Dombucheri given up by the first defendant in favour of Sundara Pandia Naicker Avergal on the sixth instant, the said zamindari and the incomes thereof and all its appurtenances, together with the buildings within the said Palace as mentioned in paragraph 1 hereof and the rights, if any, acquired by the first defendant through the release deed entered into between the said Sundara Pandia Naicker Avergal and the first defendant, shall be enjoyed by the plaintiff Kandaswami Naicker and his heirs after the lifetime of the said first defendant.
Clause 3.--The first defendant shall give up to the plaintiff the village of Boothipuram attached to the said zamin and the hamlets attached thereto, together with all the incomes thereof, so that he might enjoy them from 1st July, 1890, absolutely. The first defendant alone shall pay to Government the full peishkush and road-cess of the said zamin including the said village and the plaintiff shall not be responsible for the said peishkush and road-cess.
Clause 4.--The plaintiff and his heirs shall enjoy absolutely, free of thirva, with the power of alienation by way of gift, mortgage, sale, etc., one-fourth share in the nanja, punja and garden lands registered as pannai lands under the Bangaruswami tank and the Marimoor tank in the said zamin and specified in the schedules hereto annexed, as well as the lands which are now in the plaintiff's possession and for which patta stands in his name.
Clause 5.--The first defendant shall pay to the plaintiff through Court in three months' time from this date Rs. 35,000, thirty-five thousand, for the purpose of discharging the debt borrowed from V.E.N.K.V. Ramanathan Ghettiar at Madura through the zamindar of Thodappanaicka-noor for the expenses, etc., of the aforesaid Suit. In default of payment of the said sum by the said date the plaintiff shall recover the same by a precept of the Court, with interest at one per cent, per mensem.
Clause 6.--Excluding the said zamindari and the buildings in the enjoyment of the first defendant within the Palace in Kasba Bodinaickanoor and the plaintiff's one-fourth share in the nanja, punja and garden lands registered as pannai lands under the Bangaruswami tank and'the Marimoor tank attached to the said zamin, all other pannai, etc., lands and buildings and moveables, which belonged to or were in the enjoyment of the deceased Kamaraja Pandia Naicker Avergal and are situate either in the said zamindari or in other places, shall be held and enjoyed by the first defendant and her heirs with all rights and privileges and with the power of alienation by way of gift, mortgage, sale etc., free from any subsequent claim by the plaintiff and his heirs.
Clause 7.--All moveable and immoveable properties which may be acquired by the said first defendant during her lifetime either from the income of the said zamindari or from any other fund shall belong exclusively to the said first defendant with the right of alienation by way of gift, mortgage sale, etc. and they shall after her death go to the first defendant's own heirs. Neither plaintiff nor his heirs shall have any right or claim over the said property.
Clause 8.--The first defendant shall not do any act such as adoption, etc., contrary to the above arrangements and shall have no right whatever to do so.
10. It is common ground that all the members of the family were aware of the provisions of the deed of release and those of the compromise decree and that they embodied a family arrangement binding on all of them. One of the issues in the trial Court was whether the deed of release and the compromise decree should be read together. The District Judge held that they should and this decision has been accepted by all the parties in this Court. It is also admitted that the allotment of pannai lands for the maintenance of the respective branches embodied in the joint statement to the Deputy Collector of the 19th December, 1888, was also part of the family arrangement. As most of the questions that call for decision turn on the construction of the deed of release and the compromise decree, we shall in due course examine their provisions in detail. For the moment it is sufficient to state that as the result of this arrangement Kamaluammal got possession for her life of the estate (less the villages of Boothipuram and Dombucheri and the pannai lands set apart for the maintenance of the second, third, fourth and fifth branches of the family) and absolutely the pannai lands referred to in Clause 6 of the compromise decree. Kandaswami got the village of Boothipuram and his share in the pannai lands set apart for maintenance and Rs. 35,000 with the acknowledgment of his right to succeed to the zamindari on the death of Kamalu-ammal. Sundara Pandia got the village of Dombucheri and his share of the pannai lands set aside for maintenance and a monetary payment of Rs. 3,000. The fourth and fifth branches were content with their respective shares of the pannai lands set aside for maintenance. As succession to the estate was governed by the rule of lineal primogeniture the fourth and fifth branches could not hope for succession until the second and third branches had become extinct and the fifth branch would have no right until the fourth branch had become extinct. The fact that the fourth and fifth branches were so far from succession no doubt induced the representatives of those branches to be content with the arrangement made for their maintenance.
11. Sundara Pandia did not get possession of Dombucheri until he filed a suit (O.S. No. 33 of 1890) against Kamaluammal. He obtained a decree against her on the 9th February, 1891. Sundara Pandia died in 1893 and his four sons wished to have the village of Dombucheri separately registered. In this they were opposed by Kamaluammal and they filed O.S. No. 8 of 1894 for a declaration that they were so entitled. This suit was brought on the basis of the family arrangement. They obtained a decree on the 24th December, 1894, declaring their right to have the village separately registered. Kamaluammal also opposed the registration of the village of Boothipuram in Kandaswami's name. This resulted in Kandaswami instituting O.S. No. 203 of 1899 to enforce his right in this respect. There were other suits brought by the second and third branches against Kamalu-' ammal with regard to the recovery from her of the peishkush which they had been forced to pay to Government and which she should have paid under the terms of the family arrangement, but it is not necessary to refer to these suits in detail. It is sufficient to say that Kamaluammal's obligations under the deed of release and the compromise decree were eventually enforced.
12. On the 25th April, 1902 Viswanathaswami, an illegitimate son of Kamaraja No. 1 filed O.S. No. 31 of 1902 against Kamaluammal and the members of the second, third, fourth and fifth branches claiming to be entitled to the zamindari. He averred that he was legitimate, but he included in his plaint an alternative claim for maintenance should it be held that he was illegitimate. His suit failed entirely, but it is of importance because Kamaluammal set up by way of defence the will which she had produced to the revenue authorities and it was held to be a forgery. It was in this suit that it was also held that Vadamalai was not debarred from succeeding to the estate by reason of insanity. This finding would have been of importance if Vadamalai had survived and had claimed the estate or if he had male issue who did, but as he preferred no claim and left no issue it is not relevant to the issues which now fall for decision.
13. Kamaluammal died on 13th January, 1921. As Kandaswami had died on the 20th February, 1901 and as his first son Viswanatha had died in 1918 his second son Kamaraja No. II went into possession of the estate as the nearest in succession and remained in possession until his death on the 16th February, 1941. His death gave rise to the present litigation.
14. Very soon after the death of Kamaraja No. II, the second defendant (his widow) and the third defendant (his sister-in-law) filed O.S. No. 44 of 1941 in the Court of the Subordinate Judge of Madura for the cancellation of a deed of release dated the 9th June, 1934, which they had executed in favour of Kamaraja No. II, on the ground that they had signed it as a result of fraud and misrepresentation on his part.This suit was transferred to the Court of the District Judge on the 4th July, 1941 and was there numbered O.S. No. 2 of 1941. The decree passed therein has given rise to Appeals Nos. 300 and 356 of 1943.
15. On the 25th June, 1941, the second defendant filed O.S. No. 18 of 1941 in the Court of the Subordinate Judge of Dindigul against the first defendant (the representative of the fourth branch), the plaintiff (the representative of the third branch), Seelabodi (the fourth son of Sundara Pandia) and T.B.M.S.K. Pandia and T.B. Kamaraja Pandia (the representatives of the fifth branch). This suit was transferred to the District Court and numbered O.S. No. 5 of 1941. The second defendant, as plaintiff in this suit, claimed that she was entitled to the zamin-dari and its appurtenances on the death of her. husband on the ground that he held the estate as his own absolute property. Out of this suit arises Appeal No. 413 of 1943.
16. On the 27th August, 1941, the plaintiff filed in the Court of the Subordinate Judge of Dindigul, O.S. No. 30 of 1941 against the first, second and third defendants. He claimed to succeed to the zamindari, including the village of Boothipuram. This suit was transferred to the District Court and there numbered O.S. No. 6 of 1941.The appeals arising out of it are Nos. 230, 301 and 355 of 1943.
17. In his written statement in O.S. Nos. 5 and 6 of 1941 Kulasekhara claimed to be entitled to succeed to the estate, including the village of Boothipuram, on the ground that under the family arrangement the third branch had left the family and therefore the plaintiff in O.S. No. 6 of 1941 was not entitled to succeed to the estate and that it devolved on him as the next in succession after the death of Kama-raja No. II. In O.S. No. 35 of 1941 of the Subordinate Court of Dindigul, Kula-sekhara No. II claimed a declaration of his title to Boothipuram. On transfer to the District Court this suit was numbered O.S. No. 7 of 1941. Appeal No. 302 of 1943 is the result of the decree in this suit.
18. We have already mentioned two findings of the learned District Judge, namely, that there was a family custom by which a son of the senior wife, although junior in age, succeeded in preference to an elder son by a junior wife and that the deed of release and the compromise decree embodied a family arrangement and should be read together. His further findings may be summarised as follows:
1. The family had continued throughout to be joint. The family arrangement entered into on the death of Kamaraja No. I did not affect the impartibility of the estate or involve a separation of the family. The succession continued to be governed by the rule of lineal primogeniture.
2. The family arrangement merely gave Kamaluammal a right to possession of the estate during her lifetime and on her death it devolved on Kamaraja No. II in accordance with the rule of succession.
3. The deed of release did not exclude the right of the third branch to succeed and the plaintiff became entitled to the estate on the death of Kamaraja No. II.
4. The village of Boothipuram had not ceased to be part of the zamindari and devolved on the plaintiff with the rest of the estate on the death of Kama-raja No. II.
5. The pannai lands referred to in Clause 6 of the compromise decree became the absolute property of Kamaluammal and had now devolved on her grand-daughters, the second and third defendants.
6. The claim of the second and third defendants for cancellation of the deed of release and compromise dated 9th June, 1934, executed by them in favour of Kamaraja No. II was well founded and therefore they were entitled to the properties mentioned therein.
19. We will first deal with Appeals Nos. 413, 230 and 301 of 1943 in which the question of the right of succession to the zamindari arises. The appellant in Appeals Nos. 413 and 230 is the second defendant and the appellant in Appeal No. 301 is the first defendant. Sir Tej Bahadur Sapru addressed the Court first on behalf of the second defendant. He contended that the deed of release and the compromise decree had the effect of separating the family and giving the zamindari to Kandaswami as his personal property after the death of Kamaluammal, to whom he had granted a life estate. As we understood him, Sir Tej did not dispute the proposition that the estate was still impartible, but instead of being owned by the five branches of the family it was according to him owned by Kandaswami's branch alone. He said that the word ' heirs ' in the compromise decree must be given the same meaning throughout, unless it was evident from the context that a different meaning should be put upon it. The correctness of this statement is not open to question, but Mr. T.R. Venkatarama Sastri on behalf of the first defendant contended,' as did Sir Alladi Krishnaswami Ayyar on behalf of the plaintiff, that in deciding what was implied by the word ' heirs' regard must be had to the kind of property being dealt with in the particular clause. The nature of the property determined the meaning to be given to the word ' heirs ' in each particular case.
20. We consider that the argument advanced on behalf of the contesting respondents must be accepted. In delivering the judgment of the Privy Council in the Sivaganga case (1925) 49 M.L.J. 758 : L.R. 52 IndAp 342 : IL.R. 47 All. 703 Turner, L.J., said:
The law of succession follows the nature of the property and of the interest in it.
21. The successor to the zamindari may not be the heir to the personal estate of a member of the joint family. If a member of the joint family dies leaving personal estate his heirs will be his own male descendants, if he has male descendants. Clause 2 of the compromise decree provides for succession to the zamindari. Clause 4 relates to the share of Kandaswami in the pannai lands set aside for the maintenance of the second, third, fourth and fifth branches. Clause 6 relates to the pannai lands which were to devolve upon Kamaluammal. As it is admitted that the various branches took absolutely their shares of the pannai lands set aside for maintenance the words ' his heirs ' in Clause 4 can only mean the heirs to Kandaswami's personal estate. Similarly the words ' her heirs ' in Clause 6 can only mean the personal heirs of Kamaluammal, because, the clause makes it quite clear, that she was to have the pannai lands covered by it as her personal property.
22. Clause 2 provides that the zamindari, excluding the village of Dombucheri, should be enjoyed by Kandaswami and 'his heirs ' after the lifetime of Kamalu-ammal. Unless the family arrangement had the effect of vesting in Kandaswami on the death of Kamaluammal the zamindari as his own absolute property, the words ' his heirs ' here must mean the heirs to the zamindari according to the rule of lineal primogeniture which had previously governed the family. In our judgment the documents cannot be read as changing the character of the estate from that of an impartible estate belonging to the joint family to an estate owned by Kandaswami in his individual right. The only change effected by the settlement so far as the estate was concerned was to defer the right of Kandaswami to its possession as the next in succession until after the death of Kamaluammal. Notwithstanding the decision in Sartaj Kuari's case (1888) L.R. 15 IndAp 51 : I.L.R. 10 All 272 , Kandaswami could not himself make it his own private property; that is conceded by all. All he could do was to alienate it. The alienation which he agreed to was merely for the lifetime of Kamaluammal. On her death it was to return to him as the person entitled to it under the rules of lineal primogeniture. We shall in due course discuss the first defendant's contention that the third branch went out of the family by reason of the deed of release. Whether the third branch went out or remained in, the rest of the family remained joint and the estate remained with the family as impartible property. It follows
that we accept the finding of the District Judge that the words' his heirs ' in Clause 2 of the compromise decree mean the heirs of Kandaswami as the holder of the impartible estate and not the holder of it in his own absolute right.
23. Where a document is couched in language which leaves no room for doubt with regard to its meaning, the Court cannot have regard to the subsequent conduct of the parties in interpreting it;but if there is any ambiguity, the Court can have regard to the manner in which the parties themselves have read it. It certainly cannot be said that the words 'his heirs ' in Clause 2 of the compromise decree clearly mean the personal heirs of Kandaswami. Therefore if there is room for doubt that they mean his heirs according to the rule of lineal primogeniture in a family owning an impartible estate, the meaning which we have assigned to them, we can have regard to what has transpired since and as these appeals may go further we will proceed to show how Kandaswami's son, Kamaraja No. II and the second defendant have read Clause 2. In O.S. No. 19 of 1921 the fifth branch attacked the deed of release and the compromise decree, but did not proceed to trial. The members of the other branches were made parties and Kamaraja No. II filed a written statement in which he made inter alia the following averments:
(1) The parties to the suit were governed by the general custom regulating the succession to impartible estates in South India and by the rules of the Mitakshara School of Hindu Law applicable to a joint Hindu family holding an ancestral impartible estate.
(2) On the death of Kamaraja No. I on the 15th December, 1888, the impartible zamindari devolved on the nearest coparcener of the senior line, namely, Kandaswami.
(3) On the death of Kandaswami the estate devolved, by survivorship on Viswanatha Kamaraja, the elder son and upon his death in 1918 without male issue it devolved upon himself.
(4) In order to avoid protracted litigation and expense and purchase peace his father entered into a compromise with Kamaluammal, whereby he gave her a right to enjoy the estate during her lifetime, but only on the condition that the zamindari and its income should be enjoyed by Kandaswami and his heirs after the lifetime of Kamaluammal.
(5) Kandaswami had not become divided in status.
(6) The plaintiff as the descendant of the juniormost branch was in no view of the law entitled to the zamindari and was postponed to himself who was the representative of the second branch and to defendants 1 to 7, who were the representatives of the third branch and to defendants 9 to 11, who were the representatives of the fourth branch.
24. Kamaraja No. II adopted the same attitude in his written statement in O.S. No. 7 of 1925 which was filed by the zamindar of Saptur, the brother of the second and third defendants, in an attempt to gain possession of the pannai lands which had devolved upon Kamaluammal under Clause 6 of the compromise decree. In O.S. No. 9 of 1933 Kamaraja No. II and the second and third defendants sued the zamindar of Saptur to recover a bungalow in Madura on the ground that it beldnged to the zamindari. The plaintiffs there all adopted this attitude, but the second and third defendants preferred an alternative plea, namely if the property did not belong to the zamindari, it belonged to them as the stridhanam heirs of Kamaluammal. The alternative plea succeeded.
25. The second defendant is claiming the zamindari as the heir of her husband and she can have no greater rights than he had. He regarded the estate as still belonging to the family and the second defendant adopted the same attitude in Original Suit No. 9 of 1933. In these circumstances it is surprising that the second defendant should turn round and repudiate her husband's pleadings and her own in the suits to which we have referred. We. hold that the second defendant has no title to the zamindari.
26. The next question which falls for decision is whether by virtue of the family arrangement it can be said that the third branch left the family and gave up all right to succeed to the zamindari. Mr. T.R. Venkatarama Sastri, on behalf of the first defendant, says that the deed of release in itself operates as a surrender by Sundara Pandia, the representative of the third branch, on behalf of himself and his heirs, of all right of' succession. He says further that if in itself it has not this effect, it has the effect when read with the compromise decree.
27. There can be no doubt that a member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession. If authority is needed it is to be found in the decisions of the Privy Council in Sivaganga Thevan v. Periaswami . In Subbanna v. Balasubba Reddi : AIR1945Mad142 a Full Bench of this Court held that a member of a joint Hindu family governed by the Mitakshara law cannot give his interest in the family estate to one of several coparceners if they remain joint in estate; in such circumstances he can relinquish his interest, but the relinquishment must operate for the benefit of all the other members. The same principle must apply to a joint family owning an impartible estate. The surrender must be to all the branches of the family or to the head of the family as representing all its members.
28. The deed of release is merely a surrender to Kamaluammal, who was not the head of the family or entitled to succeed to the estate on the death of her husband Kamaraja No. I. By the deed of release he gave up all rights that he might possess in the estate to Kamaluammal and the concluding portion of the document provides that neither he nor his heirs should have any claim to properties shown as belonging to Kamaluammal. All that she got under the family settlement was a right to remain in possession of the estate for her lifetime and an absolute right to certain pannai lands. The deed of release was not an agreement with a person who was entitled to succeed to the estate by the rule of lineal primogeniture. The reason why Kamaluammal entered into this agreement with Sundara Pandia was because he had preferred a claim to succession by reason of the fact that he was then the eldest male member of the joint family. We consider that the document cannot be read as an intention to surrender his right of succession and what is also of importance the agreement was not with the head of the family. In these circumstances we hold that the deed of release did not operate to extinguish the right of the third branch to succeed to the estate.
29. Now, has it this effect when read with the compromise decree? Mr. T.R. Venkatarama Sastri says that it has this effect by reason of Clause 2 of the compromise decree. He relies on the words ' and the rights, if any, acquired by the first defendant through the release deed entered into between the said Sundara Pandiya Naicker Avergal and the first defendant.' The clause must be read as a whole and, as we have shown, its effect is that excluding the village of Dombucheri and the rights, ' if any ' acquired by Kamaluammal under the release deed, the estate should devolve upon Kandaswami and his heirs after the lifetime of Kamaluammal. The words 'if any ' are of importance. All that Kamaluammal really got from Sundara Pandia was an undertaking from him not to interfere with her enjoyment of the estate during her lifetime.
30. The right to succeed to an impartible zamindari, especially a zamindari of the importance of Bodinaickanur, is a very valuable right and before the Court can hold that that right has been surrendered it must have clear proof of this. When we take into consideration the circumstances under which the deed of release and the compromise were entered into, the absence of any indication in these documents that Sundara Pandia intended to leave the family and the subsequent conduct of important members of the family we cannot hold that he surrendered his right of succession, even reading the two documents together. Moreover, the pleadings of Kamaraja No. II in Original Suit No. 19 of 1921, Original Suit No. 7 of 1925 and Original Suit No. 9 of 1933, actually recognised a right of succession still being in the third branch. This means-that the person who was the rightful owner of the estate according to the rule of lineal primogeniture recognised the right of the third branch to be in the family, notwithstanding that its representative had been given the village of Dombucheri. The question of succession under discussion cannot, of course, be decided by the attitude of the second branch. It must be decided on the wording of the deed of release and the compromise decree. We have said sufficient to indicate that we are firmly of the opinion that these docu-ments have not the effect which the fourth branch now contends they have. Accordingly we hold that the District Judge was right in deciding that the plaintiff was the rightful successor to the estate.
31. We do not agree, however, with the District Judge that the village of Boothi-puram remained part of the estate and that it devolved upon the plaintiff as such. The question of the title to Boothipuram depends entirely on the construction to be placed on Clause 3 of the compromise decree. The wording is free from all ambiguity. It provides that Kamaluammal should give up the village to Kandaswami and that he should enjoy the property with all income absolutely. Of course if this provision were not a part of a family settlement, Kandaswami would get no title to it, because Kamaluammal was not the successor to the estate; but as all the branches agreed to Kandaswami having this village as his private property, it was with common assent taken out of the zamindari and given to him. It became private property in his hands and it descended to his son Kamaraja No. II as such. As Kamaraja No. II died without male issue a widow's interest in it devolved upon the second defendant.
32. Very little has been said in the course of the appeal about the village of Dombu-cheri, but the same considerations apply here. Under the deed of release this village went to Sundara Pandia who was to enjoy it ' hereditarily with all rights and with power of alienation by way of gift, sale, etc.' As this was also part of the family arrangement, all parties are bound. The plaintiff has throughout so regarded it as his personal property and the first and second defendants have accepted this position. The first defendant must necessarily accept it, because he claims the estate on the basis that Sundara Pandia surrendered his rights of succession on behalf of himself and his heirs in consideration of receiving Dombucheri, his quarter share in the pannai lands set aside for maintenance and the payment of Rs. 3,000. The second defendant is also forced to take up the position because she claims that the family arrangement involved the disruption of the family and the conversion of the impartible estate into the private property of the second branch.
33. There remains to be considered the title to the pannai lands which devolved upon Kamaluammal under Clause 6 of the compromise agreement. The appeals which relate to these lands are Appeals Nos. 300, 355 and 356 of 1943. The appellant in Appeal No. 300 of 1943 is the first defendant. The appellant in Appeals Nos. 355 and 356 of 1943 is the plaintiff. In this Court all parties have accepted Clause 6 of the compromise decree as having conferred an absolute estate in these pannai lands on Kamaluammal and therefore it is unnecessary to discuss the actual wording of the clause. We may, however, add that had we been called upon to decide the effect of the clause, we should have held that Kamaluammal received an absolute estate in these lands.
34. There can be no doubt that when Kamaraja No. II succeeded to the estate, he cast covetous eyes on these lands, which were in the possession of his wife and her sister (the second and third defendants), as did their brother the zamindar of Saptur. It was on the 10th December, 1924, that the Zamindar of Saptur filed O.S. No. 7 of 1925 claiming title to these lands as Kamaluammal's daughter's son. This suit failed and it was held that Kamaluammal acquired an absolute title to the lands and that on her death the second and third defendants as her stridhanam heirs were entitled to them in preference to their brother. It will also be recalled that their title to the zamin bungalow at Madura was questioned in Original Suit No. 9 of 1933 which Kamaraja No. II and his wife and her sister filed against the zamindar of Saptur where the decision was also against him. In 1934 Kamaraja No. II endea-voured to induce the second and third defendants to release these pannai lands to him absolutely in consideration of the payment to each of them of Rs. 250 per mensem for their maintenance during their respective lives. The proposed consideration was altogether inadequate. It is admitted that the income of these lands was then at least Rs. 35,000 per annum. The ladies favoured Kamaraja No. II in preference to the zamindar of Saptur and were agreeable to Kamaraja No. II having the lands for his lifetime on his paying to them maintenance at the rates suggested, but they were not prepared to let him have anything more than a life interest. In the event of his predeceasing them they wished to regain possession of the properties.
35. The second and third defendants are purdanashin ladies, but they read and speak English. Admittedly they never received independent advice. Kamaraja No. II had consulted the late Mr. S. Srinivasa Ayyangar, then a prominent leader of the Madras Bar, who advised him. Mr. V. Ramaswami Aiyer also, of the Madras Bar, acted as junior counsel. Neither Mr. Srinivasa Ayyangar nor Mr. V. Ramaswami Aiyar ever came in contact with the second and third defendants. Mr. V. Ramaswami Aiyar gave evidence and it is quite clear from his testimony that the ladies were adamant in refusing to let Kamaraja No. II to have more than a life interest in the lands. In the course of his evidence he stated that Kamaraja No. II had told him that the ladies would not agree to the draft which had been prepared giving him an absolute interest and that the document should make it perfectly clear that the arrangement and the benefit of the release should be for him only and that the ladies should have the properties if he should die earlier. Written instructions were given to the Madras advocates to prepare a deed in accordance with the wishes of the second and third defendants and such a draft was prepared. It was put in evidence and marked as Ex. G-19. In very plain terms it said that Kamaraja No. II was to have the benefit of the lands for his lifetime only. This draft and the written instructions of the Madras advocates remained in the possession of the second and third defendants, who produced them in Court. On the 9th June, 1934, a deed was presented to the second and third defendants for their signature and they signed it. This deed followed the original draft, except that the rate of maintenance was increased to Rs. 300 per mensem. It purported to give an absolute interest to Kamaraja No. II. The ladies say that it was not read over to them and that they signed it under the impression that it was in accordance with the draft of which they had approved. They averred that they signed it as the result of fraud practised by Kamaraja No. II. The contesting defendants in this suit did not attempt to show who prepared this document or who gave the instructions for its preparation, but there is reason to believe that it was prepared under the instructions of V. Srinivasa Aiyar, the manager of the estate. The burden of proving that these purdanashin ladies understood what they were signing is on those who claim the benefit of the deed. Beyond calling the Sub-Registrar who registered the document and one of the attesting witnesses no attempt has been made to discharge this burden. The person who must know all about the matter is V. Srinivasa Aiyar. He is alive, but he was not put into the witness-box.
36. In delivering the judgment of the Privy Council in Farid-unnissa v. Mukhtar, Ahmad1, Lord Sumner said:
The mere declaration by the settlor, subsequently made, that she had not understood what she was doing obviously is not in itself conclusive. It must be a question whether, having regard to the proved personality of the settlor, the nature of the settlement, the circumstances under which it was executed and the whole history of the parties, it is reasonably established that the deed executed was the free and intelligent act of the settlor or not. If the answer is in the affirmative, those relying on the deed have discharged the onus which rests upon them. Of course fraud, duress and actual undue influence are separate matters.
37. Later in the judgment he said:
As the respondents have to bear the onus of bringing home to her mind the actual import of the deed, they cannot rely on the fact that the appellant's own evidence is untrustworthy, for it is by the evidence of their own witnesses alone that this defect is established and by that evidence they must stand. The conclusion that they have failed to discharge the burden of proof is one arrived at, not out of any consideration for this lady in particular, but in defence of those strict rules which have been laid down for the protection of the defenceless in India and it is a matter of obligation upon their Lordships to be strict and unwavering about it.
38. In this case the District Judge has believed the testimony of the second and third defendants and has disbelieved the evidence of the Sub-Registrar and of the attesting witness. We see no reason for taking, a different view. Before registering the document the Sub-Registrar recorded statements made by the second and third defendants and by their nurse Alice Maud Wells. The effect of these statements is that they had relinquished their rights in the pannai lands and property in Madura to Kamaraja No. II. There is no indication that they were asked whether they understood that they were purporting to convey to Kamaraja No. II an absolute interest in the lands or in the Madura property and we do not read the statements as indicating that the ladies understood that they were giving up their rights absolutely. The deed had been executed before the Sub-Registrar arrived. There is no evidence that it was read over to them before they signed it and they state emphatically that it was not. As they admitted that they had executed the document there was no need under the rules regarding registration for the Sub-Registrar to read the document over to them. If the Sub-Registrar's evidence is not acceptable, the evidence of Mallayyan Chettiar, the attesting witness, cannot be put on any higher plane. He was not required to be present at the registration and the District Judge regarded it as being incredible that he went uninvited so close to the Zanana quarters. Even if the Sub-Registrar read out the document we cannot believe that he did it in a manner to make its meaning clear to the ladies who signed it.
39. For the plaintiff and the first defendant much stress has been laid on two petitions which the second and third defendants presented to the Deputy Collector soon after the death of Kamaraja No. II, one on the 8th April, 1941 and the other on the 10th May, 1941. In the first of these petitions it was stated that the deed merely represented an arrangement under which Kamaraja No. II was to manage the properties during his lifetime and that it was vitiated by undue influence and misrepresentation. They stated that it was only recently that they had become aware of the fact that the deed was capable of a construction adverse to their interests. In the second petition they took up the same attitude. It is suggested that these documents show that the ladies did understand what they were signing and that the attitude taken up by them before the Collector is inconsistent with their present plea that they executed the document without knowing what was in it and as a result of fraud and misrepresentation by Kamaraja No. II. There is, perhaps, here some inconsistency, but we do not regard the petitions as an acknowledgment that they fully understood the document when they signed it. The document which they had signed had been kept from them all the time and we consider that it is very probable that they did not know what was actually in it when they petitioned the Collector. It is obvious that Kamaraja No. II kept the document to himself because he feared that there would be litigation with the zamindar of Saptur with regard to it, as the properties would devolve upon him under the Hindu Law of Succession on the death of his sisters. The document was not produced by Kamaraja No. II when he, together with his wife and sister-in-law, instituted O.S. No. 9 of 1933 against the zamindar of Saptur for possession of the zamin bungalow in Madura; nor was it referred to in the appeal which arose out of that suit. Kamaraja No. II had managed these pannai lands from the time when Kamaluammal died in 1921 and he remained in management until he himself died on 16th February, 1941.
40. The important factors in the appeals now under discussion can be summarised as follows:
1. The second and third defendants are purdanashin ladies and were allowed no independent advice.
2. They were strongly adverse to Kamaraja No. II having anything more than a life interest in the lands, because they feared that should he die before them they would lose their interest in the property.
3. Kamaraja No. II agreed to fall in with their wishes and actually had a draft prepared in accordance therewith.
4. The appellants have not shown why those instructions were not followed, notwithstanding that if there had been no fraud, an explanation could have been given by V. Srinivasa Aiyar.
5. After its execution the deed did not see the light of day until after the death of Kamaraja No. II although it was of importance in the suit against the zamindar of Saptur with regard to the bungalow at Madura.
6. On the face of it the transaction was grossly unfair to the second and third defendants.
7. The District Judge, who had the advantage of seeing the witnesses in the witness-box, believed the second and third defendants and Alice Maud Wells in preference to the Sub-Registrar and Mallayyan Chettiar, the attesting witness.
8. Without an explanation, which is not forthcoming, it is impossible for the Court to accept that the second and third defendants abandoned their resolution not to give Kamaraja No. II anything more than a life interest.
9. The case falls within the judgment of the Judicial Committee, in Farid-un-nissa v. Mukhtar Ahmad (1925) 49 M.L.J. 758 : L.R. 52 IndAp 342 : I.L.R. 47 Alll. 703 . In these circumstances we consider that the District Judge rightly decided that the second and third defendants were entitled to these pannai lands.
41. We shall now summarise our findings:
1. The family has throughout remained joint and the estate impartible.
2. Succession to the estate is governed by the rule of lineal primogeniture.
3. The plaintiff has established his right of succession to the estate.
4. By reason of the family settlement of 1890 the village of Boothipuram became the private property of Kandaswami and has devolved on the second defendant.
5. The pannai lands referred to in Clause 6 of the compromise decree became by reason of the settlement the private property of Kamaluammal and have devolved on the second and third defendants as her heirs.
6. The deed of the 9th June, 1934, is vitiated by fraud and is not binding on the second and third defendants.
42. The result is that all the appeals are dismissed except Appeals Nos. 230 and 413 of 1943. Those appeals are allowed in so far as they relate to the second defendant's claim to Boothipuram. The second defendant will pay the costs of the plaintiff and the first defendant in respect of her claim to the zamindari, based on its value, excluding Boothipuram, Dombucheri and all the pannai lands. She will receive costs from them based on the value of Boothipuram. The first defendant will pay costs to the plaintiff, based on the value of the zamindari, excluding Boothipuram, Dombucheri and the pannai lands, as he failed to establish his plea that the third branch had left the family. The plaintiff and the first defendant will pay the costs of the second and third defendants in Appeals Nos. 356 and 300 of 1943 which arose out of Original Suit No. 2 of 1941. The second defendant filed a memorandum of cross-objections in Appeal No. 300 of 1943. This was not pressed and is dismissed with costs in favour of the plaintiff and first defendant. We certify for two counsel.