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Annadana Jadaya Gounder Vs. Konammal and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1923Mad402; 71Ind.Cas.533
AppellantAnnadana Jadaya Gounder
RespondentKonammal and anr.
Cases ReferredPeriasami v. Periasami
hindu law - impartible jagir--succession--joint family property or separate property--senior branch renouncing by arrangement right of succession--non-division of status--effect of arrangement. - - clearly, the will, is of no effect by reason of madras act ii of 1904 to pass the jaghir to the second plaintiff the district judge gave a decree for the jaghir to the first plaintiff as the heir-at-law and to the second plaintiff for the properties in the other schedules which he found to be self-acquisitions of naranappa. it is a well-settled proposition of law that the succession to an impartible estate is governed by the rule of survivorship if it is joint family property and by the rule of inheritance to separate property if it is separate property. we know that lakshmanappa was.....krishnan, j.1. this is an appeal by the first defendant against the decree of the district judge of south arcot in original suit no. 13 of 1916 on his file. the suit was drought by the plaintiffs to recover possession of the impartible estate known as jadaya goundar jaghir, one of the bill jaghirs on the kalayan hills in south arcot, and also the moveable and immoveable properties and outstandings described, in schedules b, c and d. the jaghir is one of the estates included in the schedule of the madras impartible estates act, ii of 1904, and is thus made inalienable by the holder beyond his lifetime. the last bolder of the jaghir was one naranappa jadaya goundar; the jaghirdars ire given the honorific title of jadaya goundars. he died in 1914 leaving a will, which is not now disputed, by.....

Krishnan, J.

1. This is an appeal by the first defendant against the decree of the District Judge of South Arcot in Original Suit No. 13 of 1916 on his file. The suit was Drought by the plaintiffs to recover possession of the impartible estate known as Jadaya Goundar Jaghir, one of the bill Jaghirs on the Kalayan hills in South Arcot, and also the moveable and immoveable properties and outstandings described, in Schedules B, C and D. The Jaghir is one of the estates included in the Schedule of the Madras Impartible Estates Act, II of 1904, and is thus made inalienable by the holder beyond his lifetime. The last bolder of the Jaghir was one Naranappa Jadaya Goundar; the Jaghirdars ire given the honorific title of Jadaya Goundars. He died in 1914 leaving a Will, which is not now disputed, by which he bequeathed all his properties to the second plaintiff. The first plaintiff is his mother and the heir-at-law to his separate properties, as he left no issue. The two plaintiffs sue jointly, the second plaintiff as the beneficiary under the Will and first plaintiff as the heir-at-law in case the Will is found to be invalid. Clearly, the Will, is of no effect by reason of Madras Act II of 1904 to pass the Jaghir to the second plaintiff The District Judge gave a decree for the Jaghir to the first plaintiff as the heir-at-law and to the second plaintiff for the properties in the other schedules which he found to be self-acquisitions of Naranappa. Appeal No. 75 of 1921 is against that decree.

2. The first defendant himself had brought a suit, Original Suit No. 50 of 1916, against the first plaintiff and others to recover a house in Akkarapalayam in their possession which he claimed to be a part of the Jaghir which, according to him, passed to him on the death of the last holder by the right of survivorship taken with the rule of lineal primogeniture. The District Judge held that the house was not part of the Jaghir, and having already held in the connected suit Original Suit No. 13, of 1916, which was tried with this suit that he was not entitled to the Jaghir itself dismissed his suit. Appeal No. 76 of 1921 is against that decree.

3. The main question for decision is, who is entitled to succeed to the Jaghir on the death of the last holder That would depend upon whether the Jaghir in his hands was the joint family property of himself and the defendant and others or his separate or self-acquired property. It is a well-settled proposition of law that the succession to an impartible estate is governed by the rule of survivorship if it is joint family property and by the rule of inheritance to separate property if it is Separate property. That was so laid down in Kaiama Natchiar v. Rajah of Shivagunga 9 M.I.A. 539 : 2 W.R.P.C. 31 : 1 Suth P.C.J. 520 : 2 Sar P.C.J 25 19 E.R. 843 and has since been affirmed in several cases, the last one being the case in Baijnath Prasad Singh v. Tej Bali Singh 40 M.L.J. 387 (1921) M.W.N. 300 : 25 C.W.N. 564 : 2 P.L.T. 257 : 23 Bom. L.R. 654 : 29 M.L.T. 358 . In the present case there is no difficulty in choosing a single individual out of a class for the Jaghirship, for it is conceded that if the rule of survivorship applies, the 1st defendant is entitled as the senior member of the senior line, whereas if the rule as to succession to the separate estate applies the 1st plaintiff, the mother, is entitled.

4. We have thus to address ourselves to the question whether on the evidence in this case the District Judge was light in holding that the Jaghir was the separate property of Naranappa, the last holder. A genealogical table showing the relationship between the first defendant and Naranappa and others is attached to the judgment of the lower Court and has been accepted as correct by both parties. That shows that one Lakshmanappa was the twenty-ninth Jaghirdar. We know that Lakshmanappa was succeeded in 1822 not by his eldest son Ramappa who was said to have been of weak mind, nor by his son Aannappa who was born at the time but was a minor of 5 years of age, but by his second son Annadana and the jaghir has continued in his junior line till now, that is, for four generations. What exactly happened in 1822 when the senior line was set aside in favour of the junior line is not clear; nearly 100 years having elapsed there is naturally no direct evidence about it. We must gather what we can about it from the proceedings and the judgments of the First Court and of the High Court in Original Suit No. 7 of 1875 brought by the widow of the 1st Jaghirdar as guardian of her minor son, Annadana, to recover the estate for him from Lakshmanappa of the senior branch who had usurped it. The plaint and the written statement in it and the decree and the judgment of the First Court are marked together as Exhibit B, the judgment of the High Court as Exhibit C and the decree as Exhibit D. In that suit the plaintiff Annadana succeeded in recovering the estate and he became the 32nd Jaghirdar. The judgment of the Trial Judge deals more with the question whether the then plaintiff's mother was properly married and whether plaintiff was a legitimate child than with what happened in 1822, as he held as a point of law that Annadana, the 30th Jaghirdar, having succeeded to the estate his descendants had a preferential claim to it. He has, however, made some remarks in his judgment which are in point. He says that 'the old father (the 29th Jaghirdar) yielded the title to him (the 30th man) before he himself died' and 'that the defendant there (who was of the senior branch) was the next heir according to the ordinary rule of succession if the plaintiff, the minor, was not a legitimate child.' The latter, however, is only an opinion of the Judge and we cannot attach much weight to it.

5. In the judgment of the High Court something more appears as regards the point before us. Their Lordships say: 'We think the plaintiff's claim may be regarded as resting on family arrangement made in 1820 and not challenged until the death of the minor plaintiff's father in 1866. Regarding the 29th Poligar who possessed the proprietary right in the property it was competent to him with the members of his family to alter the succession by the arrangement referred to.' What exactly the arrangement was and what its scope was it is not possible to gather from the records. It was suggested for the respondents that what the 29th Poligar did was to make a gift of the Jaghir to his second son before he died and the Jaghir was thus self-acquired property in his hands. Though according to the decision in Sartaj Kuari v. Deoraj Kuari 10 A. 272 : 6 Ind. Dec. 182 he could have probably made a gift, Madras Act II of 1904 not having been yet passed, there is no evidence on which we can hold that the arrangement in 1820 or 1822 was in the nature of a gift. The most that we can reasonably infer from the evidence is that here we have an arrangement similar to that in Naragunty Lutchmeedavamah v. Vengama Naidoo 1 Suth. P.C.J. 460 : 1 Sar P.C.J. 826 : 19 E.R. 666 and Naraganti Achammagaru v. Venkatachalapati Nayanivaru 4 M. 250 : 1 Ind. Dec. 1010. The result of the arrangement was practically to substitute the junior line for the senior line to succeed, to the Poligarship but there is no evidence of any further interference with the right of the senior line. It did not affect the Jaghir being held as joint family property and the right of survivorship subsisting in the senior branch as well as in the two junior branches of the 30th Poligar's brothers. (See the pedigree). The possession of the second line being consistent with the joint family rights continuing, it cannot be treated as making the Jaghir the separate property of the second line by adverse possession. The effect of that possession is no more than that of the arrangement itself The failure of Lakshmanappa of the first line in Original Suit No. 7 of 1875 did not result in any separation either; the suit was decreed in favour of the minor of the second line only on the footing that the arrangement in 1820 was not a temporary one, as Lakshmanappa contended, but was effective in continuing the Jaghirship in that line. Now, that that line has become extinct a new position has arisen and there is nothing in the two judgments to prevent the senior line from claiming the Jaghir now by survivorship.

6. In this connection reference may also be made to the entry in Inam Register, Exhibit III, where in column 19 the heirs of the 31st Jaghirdar are given and they include members of the lines senior and junior to the then Jaghirdar's line. This is a strong indication that the joint family character of the Jaghir we not destroyed by what happened in 1820 or 1822.

7. The learned Vakil for the respondents then argued that the conduct of the parties showed that the two lines had become separate at some time or other and that the Jaghir was treated as the separate I property of Naranappa's line. As apparently this family had no other joint properties of any value except the Jaghir he could not point to any particular act of partition or division, and he, therefore, contended that it was sufficient for his clients to show that Naranappa was divided in status from his cousins of the senior line. It is very doubtful if the owner of an impartible estate can get himself divided in status with reference to that estate by a mere unilateral declaration so as to destroy the joint family right of succession by survivorship to it which the members have. It is not, however, necessary to decide this question here, for we have no evidence of any such express declaration or of anything from which it could be inferred.

8. The learned Vakil for the respondents, then relied on the following circumstances as showing separation, viz.:

(1) The removal of the residence of the: Jaghirdars to Pottayam in 1872 and their continuance to live there ever after, whereas the other members of the family continued in the ancestral place of Chinha Tirupati;

(2) The absence of evidence to show that the senior line kept up any rights in the Jaghir;

(3) The absence of evidence of any application for help made by the members of the senior line to the Jaghirdar;

(4) The absence of any consciousness of the existence of a joint family when guardianship proceedings took place in 1901;

(5) Proof of the hostile attitude of the Senior line in the patta proceedings in 1898;

(6) Separate living and separate mess for 30 or 40 years;

(7) Proof of non-participation in the worship at Chinna Tirupati temple and in the annual Durbar held by the Jaghirdars;

(8) Absence of a single joint dealing of the senior line with the Jaghirdar, all dealings being separate; and

(9) The fact that the members of the Senior branch were treated just like any ordinary ryot with reference to collection bf forest produce.

9. My learned brother has dealt with the evidence on these points at very great length and as I agree with his conclusions it is unnecessary to burden the record with a further discussion of the details of that evidence. It is clear that even if all the above points are found in favour of the first plaintiff, it is insufficient to establish that the Jaghir had become the separate property of the last holder. The points Urged are all consistent with the Jaghir continuing as the joint family property of the members of all the branches. Considerable reliance was placed by the respondents' Vakil on the ruling of the Privy Council in Tara Kumari v. Chaturbhuj Narayan Singh 30 Ind. Cas. 833 : 22 C.L.J. 498 : (1915) M.W.N. 717 : 42 I.A. 192 and the recent ruling of this Court in Gurusami Pandiyan v. Sendatti Kalai Pandia 61 Ind. Cas. 242 : 44 M. 1 : (1920) M.W.N. 660 : following that case. It is true that the recent Privy Council case in Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas. 534 : 23 Bom. L.R. 654 : 29 M.L.T. 358 doss not refer to the case in Tara Kumari v. Chaturbhuj Narayan Singh 30 Ind. Cas. 833 : ) and that case must still be treated as of authority. I am, therefore, inclined to think that to show that an impartible estate has become the separate property of the holder it is not absolutely necessary to prove that there was some express division in which that property was involved or that the fights of others in it were abandoned. Bach case has to be decided on its own facts. The present: case, however, is completely distinguishable from Tara Kumari v. Chaturbhuj Narayan Singh 30 Ind. Cas. 833 : 42 C. 1179 : 19 C.W.N. 1119 : and Gurusami Pandiyan v. Sendatti Kalai Pandia 61 Ind. Cas. 242 : M.L.T. 365, as in both those cases the indications of the Zemindari being the separate estate of the last holder were much stronger. Furthermore, our decision in Gurusami Pandiyan v. Sendatti Kalai Pandia 61 Ind. Cas. 242 : 44 M. 1 : 39 M.L.J. 529 : M.L.T. 365 is now in appeal before the Privy Council. Considering the Whole of the evidence, I agree with my learned brother that it falls short of proving that the joint family rights of the first defendant's line in the Jaghir were extinguished at any time. In the hands of Naranappa, the last holder, the Jaghir must be looked upon as joint family property and not as his separate property and the finding on Issues Nos. 3 and. 4 must be in favour of the first defendant. In this view Issue No. 5 requires no discussion, but I may add that I agree with my learned brother that the finding of the District Judge on the 'point is correct. Issue No. 2 was expressly given up and the other issues were not argued before us.

10. In the result, Appeal No. 75 of 1921 is allowed and the suit dismissed so far as the Jaghir is concerned arid the rest of the appeal is dismissed; the first respondent will pay the appellant's costs in both Courts calculated on the value of the Jaghir given in the suit. The appeal is wholly dismissed against the second respondent with costs payable by the appellant calculated on the relief claimed against him.

Ramesam, J.

11. The suit, out of which this appeal arises, was filed by two plaintiffs to recover certain properties described in Schedules A, B, C and D attached to the plaint. Of these, the property described in Schedule A is the Jadaya Goundan Jaghir in the South Arcot District, which has been declared to be impartible by Madras Act II of 1904 (vide Schedule to the Act). The second plaintiff claimed the properties as the devisee under the Will of the last Jaghirdar, Narayanappa, who died on 17th August 1914. The first plaintiff claimed, in the alternative, the heir of Narayanappa The District Judge of South Arcot gave a decree to the first plaintiff for the Jaghir and to the second plaintiff for the properties in Schedules B, C and D. The first defendant (who will be referred to hereafter as the defendant, being the only contesting defendant) appeals. The appeal has not been pressed so far as the properties decreed to the second plaintiff are concerned. (Vide 6th, 9th and 10th Issues). It has been argued only in respect of the Jaghir which was decreed to the first plaintiff, who will hereafter be referred to as the plaintiff.

12. The plaintiff is the mother of the last Jaghirdar, Narayanappa, and the defendant is his cousin. The following genealogical tree shows the parties and a few other relations, some of whom have figured in the suit as witnesses:


(29th Jhaghirdar)


| | | |

Ramappa, Annadana I, Vengappa. Konappa,

| 1820--1860, |

| (30th Jaghirdar) Jadayappa,

| | (R. No. 7).

| Lakshmanappa II,

| 1860--1866,

| (31st Jaghirdar)

| |

| Annadana II,

| (32nd Jaghirdar)

| 1866-1901

| (R. No. 1.)

| M. Konammal

| |

| Narayanappa,

| (1901--1914).



| | |

Kannappa, Lakshmanappa, Muthiyappa, |

| (R. 2.) |

Lakshmanappa, |

(R. No. 3.) |

|_____________ |

_______|__________ |

| | |

Tirumalappa, Kanappa |

| (D.W. No. 2.) |

| |

_____________|______________ |

| | | |

Annadana, Muthnsamy, Perumal, |

(defendant). (alive). (alive). |



| | | |

Konappa, Ramappa. Lakshma Vadamalai,

(Hill Munsif, (R. No. 5). nappa, (P.W. No. 8)

alive R. No. 4). (R. No 6)

13. The common ancestor in the above pedigree, Lakshmanappa I, died in 1822, leaving four sons, of whom the eldest was Ramappa and the second was Annadana I. Annadana I held the Jaghir from 1820 up to his death in 1860, when he was succeeded by his son, Lakshmanappa II, who held it till 1866, when he died leaving a minor son Annadana II. It appears that Lakshmanappa, grandson of Ramappa, managed the property as the guardian of Annadana II till the end of 1871 but usurped the estate in 1872. A suit was filed by the mother of the minor as his next friend to recover the possession of the estate (Original Suit No. 7 of 1875). It was decreed by the Judge of the Small Cause Court at Cuddalore in November 1876 and the decree was affirmed in appeal (Regular Appeal No. 116 of 1876) by the High Court (Sir Walter Morgan, C.J., and Kindersley, J.) on 7th May, 1877. Annadana II held the estate till his death in 1901, when he was succeeded by his son, Narayanappa, whose death in 1914 has given rise to the present litigation. The defendant, claiming to be the person on whom the estate has devolved by survivorship on the ground that, though impartible and capable of being held only by a single person at a time, it was still the joint family property of the family, took possession of the estate and even gone through the ceremony of installation (vide paragraph 98 of the Judge's judgment). The plaintiff, on the other hand, contends that it was the 'separate and absolute property' of the several holders of the estate who held it since 1820, (Vide paragraph 11 of the plaint). This is the most important point in the case. Before dealing with it, I will dispose of the other points in the case to clear the ground.

14. The learned Vakil for the appellant has expressly stated before us that he does not press the technical objection which is the subject of the 2nd Issue. He made no reference to the 1st, 7th and 8th Issues. The only Issues pressed before us are the 3rd, 4th and 5th. So far as the 5th Issue, which raises the existence or a custom by which women are disqualified from holding the Palayam, is concerned, I agree with the learned Judge's finding that no such custom has been made out. I agree with his reasons as given in paragraphs 96 to 108 of his judgment. In the first place, it does not appear that the practice of prostration before a Jaghirdar at the annual Pongal (January 14th) darbar has anything to do with spiritual Headship. There has been no instance within living memory in which the succession in the direct male line has failed. Again, it cannot be said that the ceremony of installation, when the Ur Goundan places a mark on the forehead of the Jaghirdar (if a male), confers the title on the Jaghirdar. The same remarks apply to the functions of a Jaghirdar at the annual festival in the month of Peratasi (October to November) for the Idol in the temple of Chinna Thirupathi. If women cannot perform these functions, either they may not be performed at all or will be done through a deputy. Anyhow, the matter has no bearing on the right to the estate.

15. There remain the 3rd and 4th Issues for Consideration. Before examining the law and facts on these Issues, it is necessary to describe the nature of the estate and of its people, so that the facts in the evidence may be understood in their proper setting. This estate, like four other similar estates, is situated in the Kalrayan Hills, three of the estates (including the one now in question) being in the portion of the hills which are in the South Arcot District and the other two being in the Chinna Kalrayan Hills which are in the neighbouring District of Salem. The suit estate is divided into four Nads (or sub-divisions) containing 40 villages, the population of which was 10 009 in the census of 1901. 'But the villages are merely fortuitous collections of huts with no definite boundaries and containing in several instances less than a dozen persons and the number of them has varied considerably at different times and in different reports. In charge of each Nad is a Mooppan who collects the revenue and corresponds to the Revenue Inspector of Government villages, and whose post is hereditary. Every village has a headman called the Goundan or Moneygar and a menial servant known as the Kangany. The Nattan has peons called Natusevagars.

16. The hill villages are never surveyed. Only five of the villages of the suit Jaghir are situated on the low grounds below the hills. On the hills, the revenue is raised in a curiously primitive and patriarchal manner which is perhaps without a parallel in any other part of the Presidency outside the Agencies of the three Northern Districts. A large part of it is derived from such old fashioned imposts as plough taxes and poll taxes. The poll tax is levied at Rs. 2 per annum for every married couple and annas eight for each widower or bachelor above the age of ten years. Women are exempt. There is also a tax of 12 annas on each plough, on payment of which a man is allowed to cultivate as much land as he likes. Other contributions levied are two annas from each married, and anna one from each unmarried, man towards the celebration of the festival at the Chinna Thirupathi temple: the same amounts towards the Poligar's expenses for Pongal; annas two and a half for Road-cess and (in the Jadaya Goundan hills) annas two for Ghee for the Poligar. Miscellaneous payments to the Poligar include subscriptions to the cost of weddings and funerals in his family and a fee (of Rs. 3 to Rs. 5) for permission to contract a marriage. Moreover, menial services in his house are performed for nothing by his subjects, men coming for a week or so at a time and hewing his wood and drawing his water.

17. Other considerable items in the revenue are the receipt from timber and forest produce and from monopolies. The monopoly income is derived by leasing to some merchant of the plains the right to buy the cultivators' grain at a fixed price below the market rate. The ryots are obliged to sell this man certain kinds of produce at these fixed rates.

18. The cultivation on the hills is either permanent or shifting. The former is carried on the level tops of the hills, which have long been cleared of practically all their growth; and the latter on the wooded slopes, the jungle being cleared and burnt, the ground ploughed, and the seed sown broadcast. After one or two crops have been thus taken off it, the land is left fallow for a time until the growth has re-established itself, when the process is repeated.' (South Arcot Gazetteer, pages 329-333).

19. The Vakil for the respondent expressly stated before us that he would put his case of 'absolute and separate property' in two ways in the alternative. (I) His branch and the defendant's branch became divided in 1820, when his ancestor Annadana I obtained it, and ever since both branches have been separate. (2) Even if the family did not become divided in 1820 they became divided in 1872. In either case, he relies on the conduct of the family since 1872 as evidence of separation. In the first case, he also relies on the fact that the junior branch has superseded the senior branch in 1820, as evidence of hostile or adverse possession since that date.

20. It is necessary, therefore, to examine the events that happened in 1820 and to properly estimate their legal significance. In paragraph 11 of his judgment, the District Judge stated: 'It is common ground that the eldest, Ramappa, was passed over in the succession for the reason that he was a parson of weak mind. Amiadana appears to have succeeded about the year 1820, in the lifetime of his father, as the 30th Poligar.' Apparently, this statement was based On similar statements in Exhibits B and C. In the judgment of Mr. (afterwards Mr. Justice) Parker, in paragraph 9, he states: 'It appears indeed that the old father yielded the title to him in 1820 before he himself died.' Again in the judgment of the High Court (Exhibit G) we have got the following passage: 'In the judgment of the Court below it is stated, and the document No. 360 among the printed papers supports this view, that his father in his old age had relinquished to him the title and that this happened in 1820 some time before the father died. It is admitted that the eldest son, Ramappa, was a person of weak mind, and that his son, Kannappa, then born, was an infant of tender years. We think it may be gathered from the evidence that by an arrangement between the Poligar and the adult members of his family the Palayatm was transferred to his son Annadana and also that intimation of this was given to the Revenue Officials and was recorded by them.' Again, in the next paragraph they say; 'We think that the plaintiff's claim may be regarded as resting on family arrangement made in 1820 and hot challenged until the death of the minor plaintiff's father in 1866. Regarding the 29th Poligar Lakshmanappa Jadaya Goundan as in effect possessed the proprietary right in the property, it was competent to him Kith the members of his family to alter the succession by the arrangement referred to.' Their Lordships then proceed to find that the arrangement was not temporary but permanent so that the senior line had lost its right to bold the estate so long as the junior line has not failed.

21. The two sets of. cases (1) Naragunty Lutchmeedavamah v. Vengama Naidoo 9 M.I.A. 66 : 1 W.R.P.C. 30 : 1 Suth. P.C.J. 460 : 1 Sar P.C.J. 826 : 19 E.R. 666 and Naraganti Achammagaru v. Venkatachalappati Nayanivaru 4 M. 250 : a case approved of by Lord Macnaughten in Kachi Kaliyana Rengappa Kalakka Thola Udayar v. Kachi Yuva Rengappa Kalakka Thola Udayar (Udayarpalayam Case) 32 I.A. 261 : 15 .J. 312 : 28 M. 508 : 8 Sar. P.C.J. 855 by Lord Hobhouse impliedly in Myttuvaduganadha Tevar v. Periasami Tevar 6 M.L.J. 149 and by Lord Dunedin in Baijnath Prasad Singh v. Tej Baij Singh 60 Ind. Cas. : 534 : 19 A.L.J. 317 : 9 M.L.T. 358 and (2) Stree Rajah Yanumula Venkayamah v. Stree Rdjah Yanumula Boochia Venkondora 103 M.I.A. 333 : 20 E.R. 576 and Gavuridevamma Garu v. Ramandora Gdru 6 M.H.C.R. 93 show that when a line in the family holding an impartible estate has been superseded by another, this may be consistent with the former still continuing to be part of the joint family along with the latter, the only result of the supersession being that the headship of the family to use Lord Dunedin's language in Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas. : 534 : 2 M.L.T. 358 (P.C.) including the right to hold the estate will be in the superseding line, and the superseded line will be relegated to a subordinate position. In the first set of decisions, the history of the family can be easily seen with the help of the following pedigree there being a printing mistake in the pedigree given in the margin of page 251 of 4 Madras in Naraganti Achammagaru v. Venkatachalapati Nayanivaru 1 Ind. Dec. 1010:

Table 2





| |

Vengamma, (2) Krishnappa, (3)

| |

Veakatachalapati, Vengaamma, (4)

| |

----------------------- |

| | |

Venkatappa, (5). Anantappa, (6) |

| |

Vengamma, (7) |

| |

| |

| |

adopted |

| |

| |

Venkatappa, (8) |

widow |

Lakshmidevamma. |


| | | |

Krishnappa, Muddu- Kuppi, (9) Gopal,

| krishnama, | (respondent

Ramasami | in the appeals

| Vengamma in 4 Mad.

Venkatachalapati, (10) 250).

(appellant, in one M. Achamma.

of the appeals in (appellant in another

4 Mad. 250). appeal of 4 Mad. 250).

22. The figures attached to the names indicate the order in which the Polliem was held. The following points appear in the history of the case:

(1) The elder line was superseded by the younger line after the second Poligar's death.

(2) The younger line was again superseded by the elder line after the. fourth Poligar's death.

(3) When Kuppi sued Venkatappa (8th Poligar) in Original Suit No. 24 of 1831, the latter pleaded, among other pleas, a jus tertii, that even if the adoption on which he relied was not true, the title of Kuppi's elder brothers to succeed to the 7th Poligar (Vengamma) was better than Kuppi's, on the footing that both branches were members of an undivided family. Kuppi replied that his elder brothers renounced their right of succession in his favour. Kuppi failed in this suit.

(4) On 8th Poligar's death, Kuppi sued his widow Lakshmidevamma. The suit was based on the footing of an undivided, family comprising both branches. He succeeded in the High Court and the Judicial Committee. Naragunty Luchadavamach v. Vengama Naidu 9 M.I.A. 66 : 1 W.R.P.C. 30 : 1 Suth. P.C.J. 460 : 1 Sar P.C.J. 826 : 19 E.R. 666. It is noteworthy that the two branches continued joint even after a litigation between them (as mentioned in the preceding paragraph).

(5) In the actual litigations which were the subject of Naraganti Achammagaru v. Venkatachalapati Nayanivara 4 M. 250 : 1 Ind. Dec. 1010, the effect of the renunciation by the elder brothers of Kuppi had to be considered, At page 260 their lordships say: 'When in 1831 he re-commenced proceedings, the Palayani was in the hands of a person who established title as a member of a family, and, consequently, those proceedings failed. There was neither hostile possession nor a recovery. When Kuppi Naidu again asserted his claim, the Palayam was in the possession of a widow whose possession was to this extent hostile to the family that she denied any right in the members as co-parceners with her husband.' Again at page 261: 'Therein he maintained that in virtue of a family arrangement he was to be the successor of Vengamma, the 7th Poligar. He claimed, therefore, to occupy the same position which had been occupied by the 7th Poligar--a position consistent with the enjoyment by the other members of the family of their coparcenary interests in the estate represented by their enjoyment of maintenance and possibility of succession. All that it was necessary his brothers should abandon to entitle him to the position was their preferential right to the immediate enjoyment of the dignity of Palaiyagar and actual possession of the estate. looking to the claim advanced by Kuppi Naidu and supported by his son, there is no evidence of any more extensive abandonment of their rights by the elder brothers of Kuppi Naidu, unless it be found 1 in the Karars executed by two of them.' Again: 'We find no evidence to show that Kuppi Naidu or his son, who obtained the estate as the joint property of the family, at any time asserted a title to the Palayam as their separate property in virtue of the litigation in which they were engaged,' At page 263 : 'So construed, the instrument is very far from being a disavowal of all right to the Palayam property as a coparcenary estate. Krishnappa intended, no more than that he should stand in the same relation to Kuppi Naidu as that in which he would have stood, to tie son of the Severn Poligar, had a son been born to that Poligar. In favour of Kuppi Naidu, but in favour of no other person, Krishnappa consented pro hac vice to postpone his claim to occupy the dignity and estate of the Poligar. If, by the custom obtaining in the family, the dignity and estate passed from father to son, in assenting to the succession of Kuppi Naidu, Krishnappa must be taken to have assented also to the devolution of the Palayam to the lineal descendants of Kuppi Naidu; but, unless a construction is placed on the terms of the Karar, of which they do not naturally admit, it cannot be held that he intended to renounce all claim on the part of himself and his heirs to the succession, if it opened by reason of the extinction of the line of Kuppi Naidu * * * * * * * *.

23. The conduct of Krishnappa and his descendants is not inconsistent with the construction we have placed on that instrument. Until the line of Kuppi Naidu was extinct, Krishnappa and his descendants had no occasion to re-assert their claims, and, when that event occurred, a claim was immediately preferred on behalf of the appellant.' At page 264 referring to Periasami v. Periasami (Padamatur case) 5 I.A. 61 : 1 M. 312 : 1 Ind. Dec. 208 they say: 'The decision in the Padamatur case, which the Judge has regarded as governing this case, proceeds on a renunciation differing widely in its terms from those of the Karar of July 1st, 1831, and executed under circumstances altogether dissimilar, Muthu Vaduganatha Tevar, who conceived he would succeed to a large Zemindari, renounced for himself and his offspring all interest in the small and dependent Palayam of Padamatur, and undertook the payment of all debts contracted by him as Palayagar, thus manifesting an intention to separate himself and his descendants completely from the Palayam.'

24. The above quotations from Naraganti Achammagaru v. Venkatachalapati Nayanivaru 4 M. 250 show that (1) when the individuals of a line renounce their right to an impartible estate and those of another take, by a family arrangement, the persons who take the estate by the arrangement do so by an act not hostile in the sense that the members of the former line cease to be members of the joint family but hostile only to the extent that as long as the latter line lasts, the members of the former line cannot claim it When it fails, the members of the former line or other lines of the family can claim the estate by survivorship against a female heir, (claiming by succession strictly so-called) unless the renunciation amounted to a 'complete separation' or a 'more extensive abandonment.' (2) A litigation as to the right to hold the Zemindari between two such lines does not necessarily effect such a 'complete separation.' This follows from the decision in Naragunty Lutchmeedavamah v. Vengama Naidoo 9 M.I.A. 66 :: 19 E.R. 666 and Naraganti Achammagaru v. Venkatachalapati Nayanivaru 1 Ind. Dec. 1010.

25. The cases as Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Vankondora 2 Suth. P.C.J. 302 : 2 Sar. P.C.J. 546 : 20 E.R. 576 and Gavuridevamma Garu v. Ramandora Garu 6 M.H.C.R. 93 relate to the Totapalli estate. The following pedigree (taken from Gavuridevamma Garu v. Ramandora Garu 6 M.H.C.R. 93 gives the history of the family.




| | | |

Pedda Rajandora Jaggappadora Chinna

Malludoa | | Malludora

| Venkandora | |

Venkandora | | Bapandora


| | | |

Malludora Mallapa- Jaggappa- Ayyappa

| dora. dora dora

Lachandora | | |

| | Mallappadora(5) |

Malludora | |

| | | | | |

| | |

| |--------------------| |

| Rajandora(4). Two brothers. |

| |

--------------| |

| |

|---------------| |

| | |

who renounced. Ramandora |

(plaintiff in 6 |

M.H.C.R. 93). |





Bapandora(6) Jagappadora Malludora

| | |

4 sons. | Peda Venkandora

| |

|-------------- | Buchi

Ayyappadora. Chinna Venkandora(9)

Bapandora (respondent in

(7) 13 M.I.A. 333).

| m. Gowri-

| devamma,(appellant

| in 6 M.H.C.R. 93).


Joggappadora (8) Buchi Bapandor.

m. Venkayamma,

appellant in 13 M.I.A. 333).

25. It is unnecessary to refer to the facts in great detail. It is only important to note that (i) the 5th Mansabdar (Mallappa) fell out with his overlord having joined the people called 'Desastulu' and caused much disturbance. Thereupon Bapandora (6) offered his services to turn out the said Mallappadora and, accordingly, drove him out and took possession of the estate as 6th Mansabdar. Here is a distinctly hostile act. It was held that Bapandora, the 6th Mansabdar, took possession of the estate for the undivided family and that when the 8th Mansabdar, Jaggappa died, Buchi Venkandora (9) took the estate by survivorship against Venkayamma, the widow of Jaggappa. (2) The decision of the Judicial Committee was followed and the principle therein again applied by the High Court in Gavuridevamma Garu v. Ramandora Garu 6 M.H.C.R. 93 when the 9th Mansabdar died leaving a widow, Gouridevamma, and the plaintiff who belonged to the eldest line (superseded for a long time) got it by survivorship against the vidow. It is significant that the common ancestor of the propositus and the claimant was their ancestor in the sixth line of ascent.

26. The learned Vakil for the respondent conceded with reference to the above groups of cases that the supersession of one line by another may be consistent with either the continuance of the joint family, only an abandonment of the headship of the family or the right to hold the estate being intended, or (2) a more extensive abandonment involving complete separation between the two lines, but he argued that the latter view is the prima facie view and the burden of proving that all that happened is the former alternative is on those who allege it. Assuming that this contention is correct and without deciding a rule of burden of proof, no question of burden of proof arises where all the facts are known. In the present case, the High Court found in 1877 upon the evidence, that the supersession of the senior line was by a family arrangement due to the weak intellect of Ramappa and the infancy of his son. It is true that possession of the junior line since 1820 was adverse to the senior line in the sense that so long as Annadana I had male descendants, Ramappa's descendants could not claim the estate. This conclusion of the Courts in 1877 is perfectly consistent with the law as expounded in Naraganti Achammagaru v. Venkatachalapati Nayanivaru 1 Ind. Dec. 1010. The Courts did not decide that the succession of Annadana was adverse in the larger sense so as to effect a separation between the two lines. Such a point did not then arise and the Courts could then express no opinion on it.

27. It is not possible in 1920 to get evidence of what happened in 1820 and the view of the High Court in 1877 (fifty years earlier) is the view from which one would start. But there are other indications in the record that this is the correct view and the consciousness of the members of the family after 1820 was that the joint family continued. This Jaghir was enfranchised by the Inam Commissioner in 1867. The proceedings before the Inam Commissioner consist of a statement by the holder of the Inam (generally described in the proceedings as the Inam Statement) and of a Register (known as the Inam Register) prepared by the Commissioner. These proceedings were described by the Judicial Committee of the Privy Council in Arunachettam Chetty v. v. Venkatachalapathi Guruswamigal 53 Ind. Cas. 288 : 43 M. 253 : 22 Bom. L.R. 457 as a great act of State and in this Presidency are valuable as throwing important light on the titles to Inams. The judgment of Mr. Parker in the suit of 1875 shows that a genealogical table filed before the Inam Commissioner and the endorsement given by him were exhibited before him in that suit (Exhibits I and D). In the present case, the Inam Register is filed as Exhibit III. The heading of column 19 is 'surviving heirs of the present incumbent.' The 'present incumbent' in it was Lakshmanappa II in the pedigree. Seven persons are shown as heirs in this column. I have shown all these seven in the pedigree with the sign R-1, R-2, etc., opposite to their names. The first one is the son of Lakshmanappa II, the seventh is in a line younger than the incumbent's heir. The other five (2 to 6) all belong to the senior line of Ramappa. In what sense could these be 'heirs' except on the footing that all the members are members of an undivided family? It is noticeable that no female (such as the wife or wives of the incumbent), who would be heirs if the second branch was separate was mentioned in the column 19. Again, in Mr. Parker's judgment paragraph 8, dealing with the question of the legitimacy of Annadana II (raised in that case) he says: 'If plaintiff's minor son was not legitimate, defendant was the next heir according to the ordinary rule of succession.' This can be only on the footing that he was not divided from the junior branch. It is significant that in the plaint of that case (vide Exhibit B) though the defendant was described as a, 'distant gnati of my husband' he was not alleged to be separate or divided. It may also be observed that, when Ramappa was superseded by Annadana, there were two younger brothers. If, as contended by the learned Vakil for the respondent, the supersession amounted to a separation, what is the exact nature of the separation--is it that Annadana and his line became separate from the third and fourth brothers as well? If so, why should it be so? What act of renuniciation on their part or act of hostility against them resulted in their separation? Their position is exactly that of Gopal (last brother of Kuppi), in the pedigree pf Naraganti Achammagaru v. Venkatachalqpati Nayanivaru 4 M. 250 : whose claim was held by the High Courtto be better than Achamma's, though it did not prevail against Venkatachalapati descendant of the eldest brother of Kuppi. If it is contended that only the elder line became separate, this involves, the position that Annadana's holding was on behalf of the whole joint family--exactly like Bapandora's action in Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Venkandora 103 M.I.A. 333 : 2 Suth. P.C.J. 302 : the object of the transaction being to substitute one head for another and not to separate any line or lines of the family. On this part of the case my conclusion is that by the supersession of the senior line in 1820, it did not become separate but continued to the part of, the undivided family. This seems to be, the conclusion of the learned District Judge at the end of paragraph 47. In paragraph 48 also he observes that nothing certain can be said about the relations of the two branches in those early days. Prima facie they were undivided and it is for 'them who allege separation to prove it.

28. If there was no separation in 1820, was there a separation in 1872 or afterwards as shown by the conduct of the family? Before discussing the evidence bearing on this part of the case, I will first refer to decisions dealing with the nature of an impartible estate and as to how one branch can get an exclusive right to it or one branch can completely lose its right in respect of it.

29. Following the elaborate discussion of these cases by Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas. 534 : : , the cases maybe now grouped into four heads.

(a). Cases up to and prior to Sartaj Kuari v. Deoraj Kuari 10 A. 272 : 15 I.A. 51 : 5 Sar. P.C.J. 139

(1) Katama Natchiar v. Rajah of Shivagunga (Sivaganga case) 1 Suth P.C.J. 520 : 2 Sar P.C.J 25 19 E.R. 843.

(2) Stree Rajah Yanumula Venkayamah v. Stree Rajah Yanumula Boochia Venkondcra 103 M.I.A. 333 : 2 Suth. P.C.J. 302 : 2 Sar. P.C.J. 546 and Govuridevamma Garu v. Ramandora Garu 6 M.H.C.R. 93 (Totapalli cases)(discussed by me above).

(3) Maharanee Heeranath Koer v. Baboo Burm Narain Singh 9 B.L.R. 274 : 17 W.R. 316.

(4) Chintamun Singh v. Nowlukho Konwari 3 Snth. P.C.J. 204 : 1, Ind. Dec. (N.S.) not discussed by lord Dunedin.

(5) Periasami v. Periasami (Padaniqtur case) 5 I.A. 61 : 2 C.L.R. 81 : 3 Sar. P.C.J. 795 .

(6) Doorga Persad Singh v. Dqorga Konwari 3 Sar. P.C.J. 827 : 2 Ind. Jur. 650 2 Ind. Dec.121.

(7) Vadrevu Ranganayakamma v. Vaduvu Bulli Ramaiya 5 C.L.R. 439. (This decision of the Judicial Committee is discussed in Mayne's Hindu Law, section. 542, but referred to in all former editions as unreported) (not discussed by Lord Dung-din).

(8) Naraganti Palan cases Naraganti Achammagaru v. Venkatachalapati Nayanivaru 4 M. 250 and Naragunty Lutchmeedavamah v. Vengama Naidoo 9 M.I.A. 66 : 1 Suth. P.C.J. 460 (discussed by me above).

(9) Rajah Rup Singh v. Rani Baisni 7 A. 1 : 3 Ind. Dec. 902 (P.C.).

(b). Sana) Kuari v. Deoraj Kuari (V and the cases following its line of thought

(1) Sartaj Kuari v. Deoraj Kuari 12 Ind Jur. 213 : 6 Ind. Dec. 182).

(2) Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao v. Court of Wards (First Pittapur case) 26 I.A. 83 : 22 M. 383 .

(3) Gangadhara Rama Rao v. Rajah of Pittapur (Second Pittapur case) 47 Ind. Cas. 354 : 45 I.A. 148 : 23 C.W.N. 173 : .

(4) Maharajah of Jeypore v. Vikrama Deo Garu (Jeypore case) 52 Ind. Cas. 333 : 24 C.W.N. 226 : . Following Gangadhara Rama Rao v. Rajah of Pittapur (Second Pittapur case) 47 Ind. Cas. 354 : 35 M.L.J. 392 : 24 M.L.T. 276 (not discussed by Lord Dunedin).

(5) Bishen Parkash Narayan Singh v. Maharani Janki Kore (Bettia case) 62 Ind. Cas. 289 : 24 M.W.N. 857 : referred to as unreported by Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas. : 534 : 19 A.L.J. 317 : 29 M.L.T. 358 .

(c) Cases after Sartaj Kuari v. Deoraj Kuari 6 Ind. Dec. 182 (P.C.) but keeping up the old line of thought except as to alienation.

(1) Jogendro Bhupati Hurrochundra Mahapatra v. Nityanand Man Singh 17 I.A. 128 :.

(2) Ram Nundun Singh v. Janki Koer 29 I.A. 178 : 29 C. 828 :8 Sar. P.C.J. 251.

(3) Kachi Kaliyana Rengappa Kalakka Thola Udayar v. Kachi Yuva Rengappa Kalakka Thola Udayar (Udayarpalayam case) 32 I.A. 261 : 1 C.L.J. 2231 .

(4) Muttuvaduganadha Tevar v. Periasami Tewar 23 I.A. 128 : 19 M. 451 : 6 M.L.J. 149 : .

(5) Parbati Kunwar v. Chandarpal Kunwar 4 Ind. Cas. 25 A.L.J. 767 : .

(6) Tara Kumari v. Chaturbhuj Narayan Singh 30 Ind. Cas. 833 : 42 I.A. 192 .

(d) (1) Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas. 534 : 23 Bom. L.R. 654 29 M.L.T. 358 (P.C.).

(2) Shiva Prasad Singh v. Beni Madhab Chowhury 70 Ind Cas. 24 : 4 P.L.T. 6, applies Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas. 534

30. I may say that in making the above classification I have omitted (1) cases under the Dayabhaga Law such as the Neeikisto Deb Burmono v. Beerchunder Thakur [Tipperah case] 12 M.I.A. 523 Lord Dunedin explains this case on the ground that it was on the Dayabhaga Law in Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas. 534 : 29 M.L.T. 358 (P.C.): (2) Cases like Rajah Suraneni Venkata Gopala Narasimha Row Bahadoor v. Rajah Suraneni Lakhshma Venkama Row 13 M.I.A. 113 : 12 W.R. P.C. 40 : 20 E.P. 494 and Sri Raja Viravara Thodhramal Rajyd Lakhshmi Devi Garu v. Sri Raja Viravara Thodhramal Surya Narayana Dhatrazu 24 I.A. 118 : 20 M. 118 : 7 Sar. P.C.J. 185 : 7 Ind. Dec. (N.S ) 182, as they relate to partible Zemindaris and they were discussed by Lord Dunedin in Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas.: 534 : 29 M.L.T. 358 (P.C.). I will refer to the latter again on the question of separation. Prior to the Second Pittapur case 47 Ind. Cas. 354 : 20 Bom. L.R. 1056 : 23 C.W.N. 173 , which was supposed to negative any rights to maintenance on the part of junior members of a Zemindari (except a brother) even if never divided from the Zemindar, the line of thought of the (a) and {c) groups of cases was followed by the Madras High Court in awarding maintenance to junior members of the family (when not separated or divided) even when somewhat or very remote: (1) Visvanathaswamy Naicker v. Kamu Animal 21 Ind. Cas. 724 : 24 M.L.J. 271 (Bodinayakanur), (2) Abhinana Puma Priya v. Ami Rangasawmy 15 Ind. Cas. 412 :12 M.L.T. 245 (Ami Jaghir), (3) Vencatachella Reddiar v. Vencatachella Reddiar 4 Ind. Cas. 302 where argument exactly similar to that which was supposed to be the second ground of decision in the Second Pittapur case 47 Ind. Cas. 354 : 45 I.A. 148 : (1918) M.W.N. 922 was rejected by the High Court.

31. I have placed the case of Baijnath Prasad. Singh v. Tej Bali Singh 60 Ind. Cas. 534 : 19 A.L.J. 317 : 33 C.L.J. 35 in a separate category, as it must be admitted that the impression created in India by the Second Pittapur case 47 Ind. Cas. 354 : 45 I.A. 148 and the Bettia case 62 Ind. Cas. 289 : 24 M.W.N. 857 , that in an impartible estate on co-parcenary exists--this is the argument of the appellant's Counsel before the Judicial Committee in Baijnath Prasad Singh v. Tej Singh Bali 60 Ind. Cas. : 534 : 19 A.L.J. 317 : 33 C.L.J. 388 : 40 M.L.J. 387 : (P.C.)---even for purposes of succession and maintenance, has been removed and the angle of vision in (a) and (b) group of cases is restored. At the time the District Judge decided the present case, Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas. 45 : 2 P.L.T. 257 : 29 M.L.T. 358 had not been decided.

32. The effect of the decisions is that (1) if an impartible estate is the joint property of a family, the junior members have a right in it which, however unreal it may be for the purposes of actual enjoyment and preventing alienation, is still real and gives a, chance of succession by survivorship. (2) The cases of Sartaj Kuari v. Deoraj Kuari 10 A. 272 : 15 I.A. 51 : 5 Sar. P.C.J. 139 : 12 Ind Jur. 213 : , which has stood 'too long to be now touched,' and Rama Krishna Rao v. Court of Wards [First Pittapur case] 26 I.A. 83 : 22 M. 383 : 8 Ind. Dec. 276 (P.C.) must be confined to alienation, and cases (3), (4) and (5) in (ft) group may be ignored. The First Pittapur case 26 I.A. 83 :1 Bom. L.R. 277 : resulted in the Madras Presidency in special legislation in Madras Act II of 1904 which prohibits alienation so as to affect a successor.

33. Is it to be said, then, that an impartible Zemindary can never be the separate property of its holder and can never descend to a Hindu female by heirship (as opposed to survivorship)? The answer is 'no,' for an impartible Zemindari (1) may be the self-acquired property of a particular member and, therefore, his separate property, as in the Sivaganga case 9 M.I.A. 539 or (2) might be renounced by a member of the family, as in the Padamaiur case 5 I.A. 61 : 1 M. 312 , so that he becomes completely separate from other members of the family quoad that, property, or (3) might be wholly allotted to a member in a family partition dealing with it and. other properties of the family, as in the case in Vadrevu Ranganayakamma v. Vedrevu Bulli Ramaiya 5 C.L.R. 439. I do not claim to exhaust the modes in which it may become the separate property of a member. These only illustrate the principle that the right to it may be renounced by members of the family becoming separate in some manner known to law--by actual partition or otherwise--provided the transaction, either expressly or impliedly, was meant to give up the chance of succession to the impartible property. I do not mean it should make special reference to the impartible property. It may be specially with reference to it or generally with reference to all the property of the family so as to include the impartible property of the family. It may be inferred from conduct, provided the intention to separate covers the impartible property also. Examples of such general separation occur in Tara Kumari v. Chaturbhuj Narayan Singh 30 Ind. Cas. 833 : 42 C. 1179 : (1915) M.W.N. 717 : 42 I.A. 192 (P.C.) and Gurusami Pandiyar v. Sendatti Kalai Pandia 39 M.L.J. 529 : (1920) M.W.N. 660 : a decision of the Madras High Court before Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas.40 : 29 M.L.T. 358 , which is now under appeal to the Privy Council. This involves the position that members of a family may be divided, as to the partible properties and undivided as to the impartible estate. That members of a family may be divided as to some properties and undivided as to others was decided in Muthusami Mudaliar v. Nallakulantha Mudaliar18 M. 418 . Such a state of things is inevitable in the case of a family having an impartible estate as one of its possessions. The presumption that, if there is some division, the status of the family should be regarded as divided unless the contrary is shown, i.e., that some properties were reserved as the joint family properties, in respect of which the undivided status continues, must be very weak in the case of a joint, family with an impartible estate as one of its possessions. This is illustrated by the case in Mallikarjuna Prasada Nayadu v. Durga Prasada Nayadu 24 M 147 The brothers of the Zemindar of Devarakota {alias Challapalli) sued him for partition. As to the Zemindari, they failed on the ground that it was impartible Mallikarjana v. Durga 13 M. 406 : Then they sued for maintenance. It was contended that the family became separate by the former suit for partition. Their Lordships of the Judicial Committee in repelling the contention say: 'Their Lordships fully agree, with the High Court that the family of the parties has not been a divided one in consequence of the proceedings in the previous suit to which reference has already been made. It is true that, in that suit, a decree was made for the partition of a portion of that family property, but it was a very inconsiderable portion and had no relation whatever to the Zemindari estate.' In thy opinion these last words furnish the true test. Even where there is some kind of separation (by partition or conduct) has it any relation to the impartible estate? If it has, the impartible estate is the separate property of the holder. If not, it is still the joint family property of the family. To hold otherwise is to allow the most anomalous results. For instance, where a family has both partible and impartible properties, if the holder of the impartible estate refuses, however wantonly, to divide even the partible properties or the members do not agree as to the manner of division and thus the junior members are driven to a Court to seek their remedies in respect of the partible properties, the result. of following a different rule from Mallikarjuna Prasada Nayadu v. Durga Prasada Nayadu 24 M 147 : 2 Bom. L.R. 945 is to say that the junior members have lost all rights of maintenance from or succession by survivorship to the impartible estate.? I think it also follows from these considerations, though it does not arise in this case, that the holder of an impartible estate cannot, by giving a registered notice to the junior members that he intends to be divided, in status as regards all the partible properties and impartible properties put an end to the rights of junior members over the impartible estate. Such a notice destroys the undivided status only as to the partible properties--the principle being one member cannot compel, another member of the joint family to continue undivided when the latter wishes to divide and is willing to share the property. In Girja Bai v. Sadashiv Dhundiraj 37 Ind. Cas 321 : 43 C. 1031 20 C.W.N. 1085 : 14 A.L.J. 822 his Lordship Right Honourable Mr. Ameer Ali refers to Harihar's 'intention to separate himself and enjoy his share in severalty, by the notice of 1st October 1908.' I do not think that the correctness of Mallikarjuna Prasada Nayadu v. Durga Prasada Nayadu 24 M 147 : 2 Bom. L.R. 945 has been affected by the decision in Girja Bai v. Sadashiv Dhundiraj 37 Ind. Cas 321 : 43 C. 103 : 20 C.W.N. 1085 : 14 A.L.J. 822 . But a junior member may, while dividing himself as to partible properties, also separate himself even as' to the impartible estate, though he may not get its equivalent or may get only an inadequate quid pro quo for the renunciation, from motives of his own. A good example of this is the Padamatur case 5 I.A. 61 , where a member renounced the right to the estate thinking that he was going to become the Zemindar of a much larger estate (the Shivaganga) and though he failed to get the latter estate, it was held he had no right to the former.

34. In the present case, the Jaghir was the ancestral property of Lakshmanappa I (the 29th Jaghirdar). In column 18 of Exhibit III it was stated that he was the 28th male descendant in a direct line from the original grantee, In 1820, it was the joint family property of himself and his sons. I have already shown that the supersession of the senior line merely amounted to a change in the headship of the family and not to a separation of the line of his first son from the rest of the family which then consisted of a third-son and fourth son also. Is there anything that happened since to constitute separation? The litigation of 1875, in which the headship of the family was in question, cannot have that effect. This follows from Naraganti Achammagaru v. Venkatachlapati Nayanivaru 4 M. 250 : 1 Ind. Dec.1010 and Mallikarjuna Prasada Nayadu v. Durga Prasada Nayadu 24 M 147 : 10 M.L.J. 294 : 7 Sar. P.C.J. 761 (P.C.). What else is there to constitute separation? The District Judge thinks the following points were established in this case and prove division in status. They are, (1) complete separation in food and residence, (2) no community of estate, (3) no community of household, worship and ceremonies, (4) the action of defendants on certain occasions as if they were not members of a joint family. Of these, one would suppose item (3) follows item (1) and both may be discussed together.

35. I regret I am not able to agree with the learned District Judge or to follow his line of though in paragraphs 47 to 95. He admits in paragraph 52 that, since the litigation of 1875, the relations between the families have been strained. That circumstance is enough to explain all the facts found by the District Judge. If his conclusion is correct, if the holder of an impartible estate, owing to misunderstandings or otherwise, only takes care not to live in the same roof with the junior members and not to be on social term; with them, they lose a rights to maintenance and division. Even in a family having partible properties only, joint residence is scarcely to be expected in these days, except in the case of brothers. The remoter the relationship, the less likely is joint residence. In the case of ordinary families, long separate residence will connote separation in status the members being equivalent in social position. But in the case of the holder of an impartible property and the junior members of his family, the inequality in wealth and social position is so great that no such holder will ever permit the junior members to live with him in the same roof or assign his palace as their residence during his absence: or move with them on a position of social equality in public functions--except, perhaps, in the case of brothers, so long as their relations remain cordial. One's experience shows that the feelings, between a holder of an impartible estate, and his junior members, even when not openly hostile, are normally strained and always in a state of tension. The lucky holder of the estate thinks that the junior members are jealous of him which is very often true, liven when they are not, he imagines that they must be so. He keeps them at a distance. He thinks socially they are his inferiors and his dignity suffers if he moves on terms of equality with them. This is the normal history of Zemindars and their junior members. Much more accentuated is this state of things when there are previous litigations between them always bitterly fought out With these general remarks, I proceed to consider the particular facts in this case.

1. Residence.--The village of Chinna Tirupati was the chief place in the Jaghir. There was an ancestral palace at that place (see Exhibit B). So late as 1878, in the Manual of the South Arcot District at page 374 we have: 'The chief village in it, where he resides, is called Chinna Tirupati' It is also noticeable that in the whole litigation of 1875 (Exhibits B and C) the Jaghir itself was described not as the Jadaya Goundan Jaghir, as it is now known, but as the Palayapat of Chinna Tirupati Hill. It appears from Exhibit, B that the marriages in the family usually take place there, though the marriage of Unn malai Animal (mother, and guardian of the plaintiff in the suit of 1875) had been celebrated, for special reasons, at Mundiyoor. After that marriage, Lakshmanappa II (who was then Jaghirdar) was living with his newly married wife at Pottiyam, where Annadana I had been for some time living till 1860. But it is also clear that the palace at Chinna Tirupati must have been kept up as the family residence, for, after 1860, Lakshmanappa II was living at Pottiyam and Chinna Tirupati and he died of cholera in 1866 at Chinna Tirupati. From 1866 to 1871, the family must have continued there and the relations between the defendant's branch and them must have been very cordial, for, it is said, that Lakshmanappa (defendant's grandfather) 'held the infant Jaghirdar (Annadana II aged three) on his knees when the installation ceremony was performed and for five years thereafter acted as his guardian' (Vide paragraph 47 of the Judge's judgment). When misunderstandings arose in 1872 she removed with the minor, to 'proper places' (see the plaint in Exhibit B) probably Pottiyam, for it is admitted by both sides (see paragraph 49. of the Judge's judgment) that Annadana II lived at Pottiyam from 1875 till his death in 1900. From 1900 the last Jaghirdar was living at Akkarapalayam, in order that facilities might be afforded for the education of the last. Jaghirdar. Now, I do not see any sign of intention to separate quoad the impartible estate in any of these changes of residence. If Annadana I began to live in Pottiyam prior to 1860, that must have been because Chinna Tirupati is on the hills (see P.W. No. 4) and Pottiyam is lower down or because he had several wives or for some other similar reason. Certainly there is no evidence that Annadana I removed to Pattryam in token of separation from the other members of the family. Nor, can it be said that merely by removing his residence from the ancestral place, the holder of an impartible estate can effect separation final the other members; quoad the impartible estate, so as to deprive them of the right to maintenance or the chance of succession. If this is the, law, no junior member in, India can, be getting any maintenance. As to the ancestral palace at Chinna Tirupati, I may first observe that the so-called palace was a mere thatched building. The evidence of plaintiff's witnesses about it is indefinite. They are either not old enough to give evidence or not willing to give information, for we find some of them denying'-admitted facts, e.g., the first witness (a Pleader) says: 'I don't know that the Poligar's seat was ever Chinna Tirupati or that it was the original seat of the Poligar.' The plaintiff says: 'At Chinna Tirupati we have no palace or any other building.' In cross-examination she says: 'Kannappa would rarely come. For sometime Kannappa lived at Akkarapalayam in our palace and then went away' (Kannappa and Konappa are shown in the pedigree). Again: 'This Thirumalappa and Lakshmanappa were all enemies to my family and were conducting hostile proceedings. I don't know that I stated in my petition that Thirumalappa in the absence of the minor could be one of the next reversionary male heirs of the deceased (Exhibit E). Even after my attention is drawn to the statements, I don't know these people.' In spite of all this pretended ignorance and '? unwillingness, she is able to state: 'The first defendant and his people live in Chinna Tirupati in an enclosed building. I don't know if there are four or five buildings built up. I have never been to that building. Why should I so to it? But I have heard of it.' As to household worship: 'There, is no separate name for our household deity.... No idol is set up.' P.W. No. 3, whose aunt was married to Konappa at Chinna Tirupati where he went for the marriage, says: 'In Chinna Tirupati there is, they say, a residence of the Poligar of Chinna Tirupati. I don't know if the place where my aunt was married was a portion of the palace. I found my aunt's house in the west. There were ether houses on the west. There are three or four buildings close to each other. In the easternmost of these, the marriage was celebrated.' I think the unwillingness of the witness to say whether the place of the marriage is or is not part of the building reputed to be the palace is apparent. P.W. No. 4, one of seven wives of Annadana II, does hot know where her last co-wife, Tirumalai, is or whether she married another man or not (D.W. No. 8 has remarried D.W. No. 7). She does not know that Konappa is her husband's pangali (or gnati), though she heard that he is and saw him at the car festival. She does not know her husband's snails at Chinna Tirupati. 'People said he had pangalis there even at the time of my marriage. Up to date, I have not seen them nor do I know whether they are alive or dead and I have never enquired about them on the occasions when I attended the car festival.'.... 'I do not know if Tirumalappa or Konammal put in petitions to this Court to be guardian of the minor' and then admits, 'They objected that I should not be appointed guardian for Naranappa, as I had a child of my own.' Her brother is P.W. No. 9.' P.W. No. 5 says: 'There was ill-feeling between Tirumalappa and Kannappa on the one hand and the Poligar. They would not come to Pottayam or Akkarapalayam.... I now the hill Munsif Konappa.... Neither had he any properties in common with my Poligar nor any money transactions jointly.' 'Chinna Tirupati is on the hills. My Poligar would take what things he needed.... He had no house at Chinna Tirupati.' In cross-examination he says: 'In that year I know that the Poligar's pangalis lived at Chinna Tirupati. I mean Thirumalappa and Kannappa and their people.... I know they have houses. I do not know where except that it is east of the village.... I heard that the first defendant's grandfather Lakshmidorai had a house there. The house of the Poligar is called a palace out of respect. I do not know if the father of Annadana died at Chinna Tirupati. Nor have I heard so up to date. I have spoken to the pangalis of the Poligar, namely, to Tirumalappa and Kannappa, At the time I spoke to them they were on bad terms with my Poligar.... In this case I am helping Konammal's side'. P.W. No. 7 says: 'For the procession Tirumalappa and Kannappa and Annadana did not come b cause there was ill-feeling between them and the Poligar.' In cross-examination he says: 'Muthuswami and Perumal live in a thatched building. West of it there is not a demolished building known as the old Kutcheri.' Tirumalappa referred to in the evidence is defendant's father. P.W. No. 8, who is shown in the pedigree and is also related to the plaintiff, says: 'Ramayee, the mother of Peria Thambi, is married to the son of my elder sister. My elder sister's husband's sister is married to me. We lived in separate buildings. The one I lived in was towards the west. There is a building close to it. I do not remember who lived in the next house. To the south of my house was one house and to the east of it only one house and close to my house were no demolished walls. I never heard people say that those were the ruins of the Kutcheri of the former Poligars in connection with this suit, this is I he first occasion I have come. I. never got any summons. Naranappa the Poligar who died and Aunadana were not my pangalis nor relatives.' This evidence is so interested that he denies admitted relationship and is unwilling to give any information about the Poligar's office (Kutcheri) and the other houses at the spot. P. Ws. Nos. 6, 9 and 12 do not give any information on the matter under consideration. P.Ws. Nos. 2, 3, 4, 5, 7 and 8, while going into the box with a view to give information about the junior members, their relations inter se and their relations towards the Poligar, are unwilling to give information about the old family residence at Chinna Tirupati. I think they are all strongly interested in plaintiff, and their evidence, whatever it is, is not entitled to any weight. D.W. No. 1 is the defendant. He says: 'Prior to my taking up my residence at Pottiyam, I was living in Chinna Tirupati from infancy in the palace there. At that time at Chinna Tirupati in that place there lived my paternal uncle and my younger brothers and myself. The palace buildings consist of a building running east and west and another at right angles running north to south. The former is one block containing two or three rooms. It has a thatched roof. The latter is connected with the former by a passage. Close to the thatched house to the south is a place for holding our Kutcheri but only the brick walls are standing.... The ruins are called the Kutcheri. The access to these buildings is two-fold, one from the east and one on the south by gates in the enclosing fence.' Here s detailed information that can be cross-examined, tested and contradicted if false. In cross-examination: 'Kannappa lived north west of me in Chinna Tirupati from my infancy but in the same compound. A passage connects to the buildings. The entrance of this portion faces south. It and that passage have a separate thatch. The Nadai is a shed. Our building has a separate roof from that Nadai. We and Kannapa us ed to pound our paddy in that Nadai. Kannappa did not enclose his cattle separately from us. We, had them all together in our enclosure. Our house is south of the Nadai. I lived there with my three brothers jointly. My father also lived there. There is a bamboo put round the building which we occupy which bamboo fence includes the Nadai. There is a separate bamboo enclosure round the house of Kannappa. There is no enclosure round the ruined Kutcheri. The other houses of the village lie to the west of Kannappa's building.' These elaborate details about paddy sheds, bamboo fence and cattle enclosures obtained in cross-examination carry the ring of truth with them. D.W. No. 2, an uncle of the defendant but who gains nothing if the family is undivided, while he will be a nearer male reversionary heir than defendant if the family is separate, says: 'We all live in the palace at Chinna Tirupati.... I live at Chinna Tirupati in the palace where also live Muthusami, Perumal, and Vadamalayappan (P.W. No. 8).... Our palace consists of one hall running east to west with two entrances; that is, one hall on the south and on the north is another building running east to west. Both thatched. Between the two is a hall for pounding paddy and for accommodating visitors. To the south is the Kutcheri building. My building is the western one. The Kutcheri is south of it. There, is a bamboo fence round the palace building to keep out the cattle. Naranappa had a wife senior to Unnamalai by name Nallammal who also lived at Tirupati in the palace in the northern building.' I am not inclined to accept this witness when he says: 'When, the first defendant was living at Chinna; Tirupati, we all lived as one family.' In; the cross-examination: 'There is one row of buildings with entrances side by side to different rooms under the same roof. We lived in the south and not in that place, at the time of the minor suit etc.' I do not attach any weight to the evidence of D.W. No. 4 on this matter. D.Ws. Nos. 5 to 11 say nothing D.W. No. 12 says: 'I know the palace. The palace is built east to west. There is one building east to west and another a little beyond to the east running east to west. One of the buildings has an entrance facing south and the other has an entrance facing north, and between these two is a covered hall. All are thatched. The bin is to the north of the northern building, i.e., behind it. Besides this there is a Chavadi where the former Poligars had a Kutcheri and held inquiries. It is roofless.... The palace has a compound. All the buildings together are enclosed by a fence of twigs and split bamboos. The bamboo enclosure encloses the building occupied by Kannappa and the building occupied by Muthusami and Perumal Dorai and runs as far as the demolished Kutcheri. There are no gate ways. On the western side there is an opening and another in the south.... During my time the southern building was occupied first by those who live there new and their father, namely, Perumal and Muthusami and their father: 'At page 149 he gives further information in cross-examination. D.W. No. 13 is a person who served in the palace and holds the office of Goundan of Chinna Tirupati village. He say: 'the palace is at Chinna Tirupati. The people who live in it are Muthusami and Perumal and Kannappa (defendant's brothers and uncle). The palace is built in two parts, one building east to west and one north to south, and a Shalai in between for pounding and husking, etc.' P.W. No. 15, who is a Nambiar doing puja for the Swami (idol) in the Chinna Tirupati temple, and whose house is close to the temple, after giving similar details in chief examination, says in cross examination: 'The Poligar lived in the northern building. The middle building was used for pounding paddy and sleeping and for visitors. Lakshmanappa only lived in the southern building. Along with the Poligar, Kannappa lived, etc.... Lakshmanappa had a junior paternal uncle Lakshmanappa whom I have seen. He also lived in the palace. He lived in the eastern portion of the northern building. He was living separately.'

My conclusion from the whole evidence I have set forth is that at Chinna Tirupati there is a block of buildings known as the palate little deserving that name. Relatively to the rest of the habitations of that village the name was perhaps justified. From 1830 onwards, presumably, this block of buildings was occupied by various branches of the Jaghirdar's family. The best portion was probably in the occupation of the Jaghirdars until they finally left it. A building -was used as the Jaghir office or Kutchery. After the Jaghirdars have finally left the place, this Kutcheri has fallen into ruins. The rest of the buildings is in the occupation of the junior members of the family. It may be that separate branches are occupying separate portions of the block. It is not that I differ from the District Judge as to the actual facts of residence. I agree with him in thinking that since 1875 there has been 110 joint residence and the Kutcheri has fallen into ruins. But I do not agree with the District Judge in making a point against the defendant that the Kutcheri was not kept up and assigned to the defendant's, branch as a residence. In the first place it was only intended for an office and not for living in. Secondly, the defendants had their old place of residence and continued to live in it and there was no need to enlarge it. Thirdly, no other building except the Kutcheri had fallen into ruins and. all the buildings are now in the occupation of the junior members including what used to be occupied by the Jaghirdars before 1875. The junior members thus seem to have had an addition to their total accommodation, resulting in some adjustments and changes. Thus the junior members have neither been driven away from the ancestral house nor left it, but had it added to by the abandoned residence of the Jaghirdars, This is entirely unlike the facts in Tara Kumari v. Chaturbhuj Naraym Singh 30 Ind. Cas. 833 : 42 C. 1179 , where the junior member built a new pucca house, established a Tulsi Pinda there, removed his family to it...and established a separate Thakurbari in it. I will refer to this case again. In the present case, no junior member has changed his residence or left the ancestral home permanently so as to indicate separation.

After the above detailed reference to the evidence about the residence, I do not think it necessary to deal with the evidence about the household worship and the car festival. I will only observe that in Southern India there is no such thing as a private, temple pr a Thakur or idol or deity in a house. Except in a few orthodox houses of the higher castes which are daily diminishing 'in numbers, no such thing as household worship exists. In the houses where it is still performed it is of a routine character and only the inmates of the house take interest in it, if at all. I have never known in my experience of Southern Indian life that relatives (even not resident in the house) participate either in such household worship or public worship (such as a. car festival) as a token of undivided status. Nor have I been referred to any decisions where such facts are used as tests of division or non-division. Nor is there any evidence in this case tending to show such a custom as participation by members of a joint family (even when they do not reside in the same house) in household worship or car festivals. All that one could expect is that, on occasions of marriages and other festivities and funerals, kinsmen with whom the relations are cordial are expected to attend and, conversely, those with whom the relations are unfriendly do not. If the Jaghirdar has got some functions to discharge qua Jaghirdar at the annual car festival, I do not see why the junior members, who have no such functions to discharge, should participate in. them. As to attendance at the festival, they may attend as sight-seers or not as they choose.

2. I now take up the second of the District Judge's items,--No community of property. It is admitted that, apart from the Jaghir, there is no property in existence which can be regarded as the joint family property of the family. The properties in Schedules B, C and D are the separate acquisitions of the last Jaghirdar or of his predecessor and cannot, be joint family properties in which the defendant can claim a share unless they had been incorporated with the Jaghir. Even if they were acquired out of the income of the Jaghir (we do not know how they were acquired) as the income of the Jaghir is at the absolute disposal of the Jaghirdar on account of its impartible nature, they are the acquirer's, separate property without such incorporation. There is no evidence to prove incorporation. Only if property that was acquired by Lakshmanappa I, who died in 1822 is in existence, can we expect any community of interest outside the Jaghir, Such being the case, I am unable to follow the learned Judge's remark in paragraph 60. He admits that the reply of the defendant to his query was a correct rendering of the law and yet makes out a point against the defendant. The same remarks will; apply to new residences built by the Poligars at Pottiyam and Akkarapalayam (See paragraph 61 of the Judge's judgment) and to the respondent's Vakil's contention based on the absence of joint dealings. If the family had joint partible properties of considerable value or yielding considerable income, as in Gurusami Pendiyan v. Sendatti Kalai Pandia 61 Ind. Cas. 242 : 44 M. 1 , one may expect joint dealings. To raise these points is to overlook the impartible nature of the only joint family property and the fact that it is at the absolute disposal since Sartaj Kuari v. Deoraj Kuari 10 A. 272 : of its owner.

3. It is said that the conduct of Tirumalayappa, defendant's father, in taking the cause of the ryots in some disputes between them and the Jaghirdar when the latter attempted to change the land tenure is not of one having an interest in the Jaghir. Here again, it seems to me that the nature of the estate is overlooked. The interest of a junior member in an impartible estate, from the point of view of present enjoyment, is illusory and unreal. It is real only in the sense of a remote chance of succession. But, apart from this, the bitter enmity between the Jaghirdar and Tirumalappa is enough to explain those events.

36. Again, it is said that in Exhibit F, a petition filed in by Tirumalappa for the guardianship of the Jaghirdar in 1901 (who was then a minor) the did not state that he was a sepior member-of the joint Hindu family to which the minor belonged. Now, Exhibit F was prepared according to the requirements of the Guardians and Wards Act VIII of 1890 (Section 10) arid had to allege the petitioner's fitness for guardianship of the minor. Now, while it is true that Tirumalappa was the next heir to the Jaghir (on the defendant's case) on the ground of being senior by lineal primogeniture, it does no follow that he was competent to be a guardian. The fact is' irrelevant in an application for guardianship. Very often the nearest heir (on the footing that the family is separate) would be older in age and better experienced in life and worldly affairs than the person entitled by lineal primogeniture, and the fact that the petitioner was the next heir was, if at all, a circumstance disqualifying him for guardianship. This was the very ground on which his petition was opposed. In Exhibit G, his petition was opposed by Konappa (who would be the nearest male reversioner to the estate after the mother if the property were separate) on the ground that the petitioner was the nearest reversioner (see paragraph 3)(see also Exhibit E--a counter-petition by plaintiff). This can be correct only on the footing that the family was joint. I do not say that the statement in Exhibit G binds the plaintiff but it shows the consciousness of a member of the family who is certainly not interested in the defendant; and it is because of this document that perhaps he does not figure as a witness in the case. In my opinion the allegation in paragraph 7 of Exhibit F that 'petitioner is a near relation of the minor' was all that was relevant and the non-mention of more (taken in the light of Exhibit G) cannot be used as a point against the defendant.

37. I am, therefore, of opinion that all the points relied on by the District Judge and summed up by him in paragraph 62 do not make out a separation quoad the impartible estate. It is a matter for observation that the points relied on are negative pieces of evidence. It cannot be said that either on the Jaghirdar's Side or on the defendant's side any one did any positive act with a view to separate. On the footing that the plaintiff has made out a prima facie case by proving the facts noted in paragraph 62, the learned Judge proceeded to consider certain points relied On by the defendants in rebuttal of the plaintiff's case. In the view I have taken, viz., that the plaintiff on whom the burden of proving separation lies has failed to make on a prima, facie case, I need not discuss these points which are stated in paragraph 64--especially, as to the first two of those, as they are merely negations of what the plaintiffs claim to have proved. But, as regards the third and the fourth points, I wish to make a few observations. It is said that the junior branches of the family have divided inter se and, therefore, they are not joint with the Jaghirdar quoad the impartible estate. Assuming that the junior branches are divided inter se in respect of their private dealings and other properties, it does not follow that they ate divided either between themselves or from the Jaghirdar's line quoad the impartible estate. To assert such a proposition is to assert that a family cannot be divided partly (i.e., as to some properties) and undivided as to others--a proposition which is not always true even when no impartible property is in question and which is always false when such a property is one of the properties of the family. The anomaly which such a view leads to is this--However numerous the junior branches of a family might become they should not divide their partible properties and become separate as to their personal acquisitions but must continue to be joint, if they wish to preserve their rights of maintenance and succession as against the impartible estate. On this ground also I refuse to discuss the evidence on this heading which is contained in the evidence of P.Ws. Nos. 6 and 8. The former says that Tirumalappa and Konappa would go down the hills and sell their goods separately and purchase salt and cloths separately. P.W. No. 8 says that he and the others have no lands in common in this Jaghir of shifting cultivation in, lands.

38. The next point relates to exemption of the defendant and other members of his family from payment of tribute to the Jaghirdar. In my opinion this is a point established in the case in favour of the defendants. P.W. No. I says in cross-examination: 'To my knowledge first defendant cultivates some lands in the hills; he does not pay any poll-tax. Lands don't pay any rent. Members of the Poligar's family are exempt from the payment of the poll-tax and also from the plough-tax. That is the family privilege. They or any tenant can bring under cultivation any extent of land they please without limit.' The defendant claims that this exemption allowed to members of the family was in lieu of maintenance. Now, when we remember that the net income of the family is Rs. 1,300 (see end of plaint) in 1915-1916 and the share of a person in the position of the defendant (if the property is partible)--omitting all extinct branches and seeing that Kannappa, P.W. No. 8 is in a higher-line and D.W. No, 2 in the next line and the defendant's two brothers are alive--is one twenty-fourth or property yielding an income of Rs. 54, if he is to be awarded maintenance, it may hot be more than Rs. 10 or 12. In a primitive Zemindar like this with its primitive people and primitive mode of raising revenue, the provision for maintenance made by mutual arrangement would be rather in kind than in actual cash payment. The exemption from plough-taxes and poll-taxes exactly corresponds to this. The District judge deals with this in paragraph 92 and says (1) that it is so small that it cannot be regarded in lieu of maintenance; (but the claim for maintenance could be no more than what the exemption represents); and secondly (2) that it is a family privilege, just as the Nattars, Ur Goundan and the Moopans are exempt by virtue of the office from the poll-tax. The second reply of the learned Judge seems to me really to concede the point While making a show of denying it. The Nattan and other officers render service to the Jaghirdar and instead of getting, a payment get what is its equivalent, an exemption from the poll-tax. This is exactly same as a payment. In the case of the junior members of the Jaghirdar's family, they don't render any service. Why should they get an exemption which is measure-able in money and which is equivalent to payment? There is; no legal, obligation on the part of the Jaghirdar to allow such exemption, if they are separate. But if they are undivided, there is a legal obligation to pay some amount or what is its equivalent to exempt them from' taxes. By saying it is only a family privilege, the legal significance cannot be got rid of under what seems to me to be a mere verbal quibble. To say that the Jaghirdar is allowing the exemption because the defendant is a member of the family is to recognise the obligations due to a member of the family. One may as well say where a defendant is actually getting some maintenance, it is given gratis and as a matter of grace and not as a matter of obligation. In ?ill such' cases, when the junior member is receiving as much as he thinks he is entitled to for maintenance, what more could he do to keep up the link between him and the holder of the Impartible property?' Anyhow the jaghirdars could not say that the defendants were not getting any maintenance from them and so long as they have not asserted that it was not in lieu of maintenance the link is kept up. One of the plaintiff' witnesses P.W. No. 5 gave evidence in a former deposition that the 'exemption.' of the junior members from poll-tax was in, lieu of maintenance. He admits his deposition but says: 'I might have said this because it struck me at the time.' It is clear that he wishes to discount his former statement, as he is now arrayed on the plaintiff's, side. One other point relied on by the respondent in appeal is that no contribution was made by the Jaghirdar for the marriages and deaths in the junior, branches. When we remember that in this primitive Zemindari, the costs of a wedding and funerals even in the Poligar's household were defrayed by subscriptions and fees from his subjects, one cannot expect him to make a cash contribution for similar events in the families of the junior members. There is, evidence for the defendants that the people of the Nads send supplies and money for the expenses of the ceremonies attendant on these events. The learned District, Judge disbelieves the evidence of the witnesses on the ground that they are for the most, part Nattans and Moopans who owed their office to defendant. But as the offices of Nattan and Moopau are hereditary 'offices.' I do not think that these witnesses can be discredited on this ground. It does not appear that Defence Witnesses Nos. 5, and 6 were appointed by the defendant. Besides there is the evidence of Defence Witness No. 2 (at page 99): 'On occasions of marriage we send word to the chief Nattan and he sends words to the other Moopans and Nattans and, they bring what is required without payment. That is our customary due as members of the, Poligar.' As these things must have been going on openly, I am not inclined to discount the evidence on the other ground given by the District Judge (paragraph 93) that since it has not been shown that these presents were sent with the knowledge or permission of the Poligar. The respondent has strongly relied on Tara Kumari v. Chaturbhuj Narayan Singh 30 Ind. Cas. 833 and Gurusami Pandiyan v. Sendatti Kalai Pandia 61 Ind. Cas. 242 : 44 M. 1 . In my opinion these cases do not help the respondent. In the former the facts found are:

(1) Ranjit granted in 1879 to his brother, Bhupat Narain, a mokurrari patta (perpetuallease) of a portion of the; taluk for the maintenance of the latter.

(2) Bhupat built a separate pucca house,, established a Tulsi Pinda there, removed his family to it and lived there separately. He established a separate Thakurbari in it.

(3) No help was given to Chaturbhuj Narayan by Ranjit at the time of the marriage of the former's daughter.

(4). Bhupat and Chaturbhuj mortgaged the property granted to them freely as if it was their absolute property.

(5) In 1905 Chaturbhuj stated in a judicial proceeding 'I am separate from the Thakur of Telwa.'

39. There are no facts in the present case similar to any of these. In Baijnath Prasad Singh v. Tej Bali Singh 38 Ind. Cas. 894 : 14 A.L.J. 913 referring to Tara Kumari v. Chaturbhuj Narain Singh 30 Ind. Cas. 833 : 42 C. 1179 : Richards, C.J., and Rafique, J., said: 'In this case their Dordships decided the question of separation as a question of fact and not of law.' The decision in Baijnath Prasad Singh v. Tej Bali Singh 38 Ind. Cas. 894 was affirmed by the Judicial Committee in Baijnath Prasad Singh v. Tej Bali. Singh 60 Ind. Cas. 534 (above referred to).

40. In Gurusami Pandiyan v. Sendatti Kalai Pandia 61 Ind. Cas. 242 : M.L.T. 365 again it is a decision on the facts. These are:

(1) in 1842, the father of Peria Dorai, the Zemindar who got the estate as daughter's son, separated from him and want to, live in Veppangulam.

(2) In the suit, tiled by Chinna Dorai, brother of Peria Dorai, for partition of the partible properties, at agreement was filed and was found to be genuine and it was found, by the Subordinate Court that the plaintiff, had accepted by that agreement a specific allowance from the defendant in full discharge, of all claims. In appeal Chinna Dorai contended that the words 'no right whatever to the Zemindari' in it, were subsequently added after he had signed it. But this contention was rejected by the High Court.

(3) Chinna Dorai who also was living in Veppangulam was alienating ancestral properties without any reference to Peria Dorai and was also making acquisitions separately for, himself.

(4). In 1877, the Veppangulam palace was sold in Court auction for the debt of Periasami (son of Chinna Dorai) while his brother Chinnasami filed a claim and got his share-released, he claim was made, by the Zemindar, who, on the other hand, purchased it. In fact, as regards all the paternal ancestral properties, there was no evidence pf any interference by Peria Dorai or his, descendants. The conduct showed the original ancestral properties of the family were regarded as the exclusive property of Chinna Dorai and his branch. Perhaps this was the reason why the Zemindari became the exclusive property of Pedda Dorai.

41. It is unnecessary to say more about this case beyond saying that it was before Baijnath Prasad Singh v. Tej Bali Singh 60 Ind. Cas. 534 : 19 A.L.J. 317 : . and that it was a decision on the 'facts, especially as it is under appeal to the Judicial Committee.

42. In Sri Raja Viravara Thodhramal Rajya Lakhshmi Devi Garu v. Sri Rajah Viravara Thodhramal Surya Narayana Dhalrazu 24 I.A. 118 : 7 Ind. Dec. 182 grant of two villages for maintenance and separate food and residence even for 70 years was held not to constitute separation.

43. To sum up the history of the family from 1820 to 1916:

(1) There is no positive act of separation--no Samakhya as in Vadrevu Ranganayakamma v. Vedrevu Bulli Ramaiya 5 C.L.R. 439, no agreement as in Gurusami Pandiyan v. Sendatti Kalai Pandia 61 Ind. Cas. 242 , no grant of a large: property in view of separation as in Tara Kumari v. Chaturbhuj Narayan Singh 30 Ind. Cas. 833 : I.A. 192 (P.C.) and no remuneration as in Periasami v. Periasami (Padamatur case) 5 I.A. 61 : 1 M. 312 .

(2) No assertion that the families of the defendant and plaintiff were separate until the plaint in this case.

(3) Contrary assertions, in the litigation of 1875 and in Exhibit G that the defendant's grandfather and father were the next heirs.

(4) The continuance of all the junior members in the ancestral homes, either contiguous to the residence of the Jaghirdar or part of the so-called palace.

(5) The exemption of all the junior members from taxes--which is measurable in money and which is equivalent to (if not in lieu of) grant for maintenance.

(6) The receipt of supplies for marriages and other occasions as in the case of the Jaghirdar.

44. In my opinion there has never been separation of the senior line and the Jaghirdar's line. I would allow the appeal in respect of the Jaghir and dismiss the plaintiffs' suit for it. As to costs I agree with the order of my learned brother.

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