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Vadamalaimuthu Seelaraja Pandian Etc. Vs. Krishnaswami Kamaya Naicker and ors. Etc. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1973)1MLJ71
AppellantVadamalaimuthu Seelaraja Pandian Etc.
RespondentKrishnaswami Kamaya Naicker and ors. Etc.
Cases ReferredRaja Krishna Yachendra v. Raja Rajeswara Rao
Excerpt:
- .....t. v. k. kamaraja ii on 16th february, 1941, the succession dispute ended in favour of t. b. b. s. rajaya pandia : chinnathayi alias veeralakshmi v. kulasekara pandia naicker and anr : [1952]1scr241 . veeralakshmi, the widow of t.v. k. kamaraja ii adopted to her late husband a son by name sri s. krishnaswamy, on 25th march, 1953. the validity of the adoption was eventually upheld by the supreme court in t.b.s.s. rajaya pandia nayakkar v. krishna-swami kamaya maicker c.a. no. .676 of 1963. the appellant as the son of t.b.b.s. rajaya pandia, claims to be entitled to maintenance under section 45 (2) (b). we may mention that the appellant's great grandfather, one sundara pandia, had executed a relinquishment of his right to the estate, the terms of which have been extracted in chinnathayi v......
Judgment:

K. Veeraswami, C.J.

1. One Vadamalaimuthu Seelaraja Pandian, having filed before the Estates Abolition Tribunal, Madurai, his application under Section 45 (2) (b) of the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, has appealed to this Court. The Bodinaickanur Zamin was notified and taken over under the provisions of that Act. He had applied under Section 42 (1) for a declaration that he was entitled to half the advance compensation, but this claim was unsuccessful, and does not survive now. The appeal is only confined to the maintenance claimed in the alternative. On the death of T. V. K. Kamaraja II on 16th February, 1941, the succession dispute ended in favour of T. B. B. S. Rajaya Pandia : Chinnathayi alias Veeralakshmi v. Kulasekara Pandia Naicker and Anr : [1952]1SCR241 . Veeralakshmi, the widow of T.V. K. Kamaraja II adopted to her late husband a son by name Sri S. Krishnaswamy, on 25th March, 1953. The validity of the adoption was eventually upheld by the Supreme Court in T.B.S.S. Rajaya Pandia Nayakkar v. Krishna-swami Kamaya Maicker C.A. No. .676 of 1963. The appellant as the son of T.B.B.S. Rajaya Pandia, claims to be entitled to maintenance under Section 45 (2) (b). We may mention that the appellant's great grandfather, one Sundara Pandia, had executed a relinquishment of his right to the estate, the terms of which have been extracted in Chinnathayi v. Kulasekara Pandia : [1952]1SCR241 , but the history of litigation in respect of the relinquishment shows that the relinquishment was to get out of the way the succession of T. B. S. S. Rajaya Pandia.

2. Section 45 (2) (b) directs the Tribunal to determine the aggregate compensation payable to certain persons, considered as a single group, and among those are the persons who, immediately before the notified date, were entitled to maintenance out of the estate and its income either under Section 9 or 12 of the Madras Impartible Estates Act, 1904. Section 9 of the 1904 Act mentions certain persons as being entitled to the right of maintenance out of the estate and its income. For the present purpose, this section covers only the son, grandson, or great grandson in the male line, born in lawful wedlock or adopted, of the proprietor of the impartible estate, or of any previous proprietor thereof. Previous to the Act it had been established by a series of decisions that for the purpose of ascertaining succession to an impartible estate the estate should be regarded as the property of a joint Hindu family, and Section 9 of the Impartible Estates Act has given effect to this principle. The appellant is not in direct line of T. V. K. Kamaraja II, but is the grandson of his paternal uncle Seelaraja, the son of Sundara Pandia, in the third branch of the joint family. The adopted son, Krishnaswamy belongs to the second branch. The question is whether on account of the fact that T. B. B. S. Rajaya Pandia was factually a landholder between 1941 when Krishnaswamy's adoption to Kamraraja II was upheld, which as a result divested T. B. B. S. Rajaya Pandia, he could be regarded as the previous landholder within the meaning of the Section 19. In our opinion, the answer should be in the negative. Though for the purpose of succession the estate has to be regarded as the property of a joint Hindu family, the concept has never been extended to its full implications. As held in Pushpavathi Vijayaram v. P. Visweshwar : [1964]2SCR403 , the concept is limited only to the right of survivorship, and not to the other rights of a member of joint Hindu family, to the right of partition, he right to restrain alienations by the head of the family except for necessity, and the right of maintenance. But apparently based on affinity or close kin-hip the right to maintenance of some only of the members of the joint family has been developed and recognised, but only by custom. Sir George Rankin pointed out in I. T. Commissioner v. Krishna Kishore , that the law was not that all male members of the family were entitled to maintenance from an impartible estate, for, 'it is contrary to much authority and practice and it would, in many if not in most cases, convert a heritage into a burden. If some members have and some have not the right, although all are acqually 'co-owners' or 'joint owners' the difference can only be attributed to custom'. This view was reiterated in Krishna Bahadur v. Rajeswara Rao 68 I.A. 181 : I.L.R. (1942) Mad. 419 : (1942) 1 M.L.J. 132 : AIR. 1942 P.C. 3, Both in this case, and in the earlier case of Raja Krishna Yachendra v. Raja Rajeswara Rao 68 I.A. 181 : (1942) 1 M.L.J. 132 : I.L.R. (1942) Mad. 419 : A.I.R. 1942 P.C. 3, it was taken to be the law that junior male members of the family of the holder of an impartible estate, not being sons or brothers of the holder of an impartible estate, were not entitled under Hindu law, apart from proof of special custom or contract in that behalf, to maintenance out of the estate. The appellant has not specifically claimed maintenance under Section 12 of the Impartible Estates Act, and in any case, he has not established any special custom. His claim can succeed only if he shows that he is the son, or grandson, or great grandson of any previous proprietor in the language of Section 9.

3. We are of the view that the expression previous proprietor, in the context of and in the principle of survivorship being applicable to succession to impartible estates, can but refer to a former proprietor from whom succession has descended. That for instance, would exclude an alienee of the estate. Clause (a) of Section 9 is more, compatible, as we think with the construction that the previous proprietor should have been the stock of descent. Also, if Rajaya Pandia notwithstanding the factual position, were regarded as a previous landholder, that would result in a legal inconsistency because, on his adoption in 1953. Krishnaswamy would succeed from the date of the death of Kamaraja II in 1941 and by this principle of relation-back, he would divest Rajaya Pandia from the date Krishnaswamy succeeded, that is to say 16th February, 1941. There could then be no two proprietors holding the estate at the same time between the date of Kamaraja II's death, and the adoption of Krishnaswamy. We do not think that the word 'any' in the phrase 'any previous proprietor' makes any difference' to the appellant's claim, and cannot be read in vacuo, but only in the context. Clause (a) of Section 9 suggests' that maintenance is contemplated only to those relations in the lineal line, and that too confined to son, grandson and great grandson in the male line. It cannot be the intention of the phrase 'any previous proprietor' to throw open the right to maintenance to a descendant of one who was not the stock of descent, and from whom the succession to the estate has not descended to the present proprietor.

4. On that view, the appeals are dismissed, with costs of the first respondent.


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