1. In this Appeal, the second defendant is the appellant and the plaintiff the respondent. The suit was filed to declare the sale of the shrotriyam village of Vasudevapuram in May 1911, for arrears of revenue, void on the ground that it was made during plaintiff's minority and therefore opposed to Regulation X of 1831.
2. The plaintiff alleged that the village originally belonged to the plaintiff's family as joint family property and that it fell to plaintiff's father's share in a partition. When the father died in 1905, the plaintiff became sole owner. The second defendant admitted that the village belonged to the joint family consisting of plaintiff's father and others but denied the partition and that the plaintiff became the sole owner in 1905. The first issue was framed with reference to this plea.
3. In appeal, he wishes to argue that the property did not belong exclusively to plaintiff's family. According to his present suggestion, the plaintiff's family owned only 3/14th share in the village and the appellant filed new documents to substantiate his plea. Having regard to his admission in the written statement, we do not think this plea should be allowed to be raised at this stage. We say nothing on the merits of this plea.
4. The partition must be found to be true as plaintiff's first witness whom we see no reason to disbelieve proves it.
5. The next point argued is that the sale is not void. The argument consists of two parts; (1) The Regulation X of 1831 does not apply ; (2) the operation of the Regulation is partly cut down by Section 63 of Act II of 1864.
6. Taking up the first point, the appellant's contention is that Section 2 of the Regulation applies only to cases where the minor owner obtained the property by 'regular course of inheritance' and this does not include cases of survivorship in a joint family. In the present case, the village was not plaintiff's father's self-acquisition.
7. I think Section 2 itself throws some light on the words 'regular course of inheritance.' The word 'accession'' occurring at the end of the section seems to have been used in the same sense as 'inheritance.' This is not an unnatural use of the word (vide 'inherit,' 'inheritance' and 'inheritor' in Stroud's Judicial Dictionary and my judgment in A.S. No. 141 of 1921 referring to Watkins v. Frederick (1864) 11 H.L.C., 358.
8. The word 'inheritance' occurs in Regulation IV of 1822 (preamble), Regulation V of 1804 (Section 3) and Regulation III of 1802 (Section 16) and it is difficult to hold in these instances that 'inheritance' does not include 'the taking of property by survivorship.' I think it is a fair inference that in Section 2 of Regulation X of 1831 the word is used in the same general sense.
9. It is next contended that Section 63 of Act II of 1864 saves the operation of Regulation X of 1831 only in respect of minor landholders. In the present case, the village was not registered in the name of plaintiff's father or plaintiff and the plaintiff is not a minor landholder. But the words in the sentence are 'minors and other disqualified landholders.' The word 'minors' includes registered and unregistered owners and this may be the reason why the word 'other' is used with reference to disqualified landholders. No doubt the results would have been the same even if the word 'other' is omitted ; but the two parts of the phrase would have been overlapping. We have not got 'minor and other' but 'minors' and we do not see any reason to cut down the natural meaning of the words as they stand. It seems to me that the object of the words beginning with 'in respect of ' was to compendiously refer to the subject matter of Regulation V of 1804 and X of 1831 so far as it was pertinent.
10. In Swaminatha Aiyar v. Govindaswami Padayachi I.L.R., (1918) Mad., 733 the Regulation was applied to a minor whose name was not registered. It is true that the ground of the decision was that the Government ought to find out the correct heir of the deceased person and the responsible officer should enter his name in the proper register. Whatever the ground may be, it must be conceded that the decision is inconsistent with the appellant's contention based on Section 63 of the Revenue Recovery Act. In Sangapathy Lakslimayya v. Intoory Bolla Reddy I.L.R., (1903) Mad., 385 it is not clear whether the first defendant's name was registered or not.
11. I am, therefore, of opinion that Regulation X of 1831 applies to all minor owners of property whether registered or not.
12. The appeal fails and is dismissed with costs.
13. I agree that the appeal must be dismissed. Plaintiff succeeded before the District Judge on the ground that the sale was held while he was a minor for arrears which accrued after his accession to the property and was therefore in contravention of Regulation X of 1831. For defendant No. 2, the transferee of the auction purchaser, it is contended that after the enactment of the Madras Revenue Recovery Act, 1864, the special, protection given to minors by Regulation X of 1831 was preserved only by Section 63 of the Act and that in that section the word 'minors' includes only minor landholders and plaintiff is not a landholder within the meaning of the Act, never having been registered as such. I agree with Mr. Srinivasagopala Achariyar who appears for plaintiff, that 'minors' in the phrase 'minors and other disqualified landholders' in Section 63 cannot be treated as equivalent to 'minor and other disqualified landholders' so as to make the word 'minors' mean 'minor landholders.' The effect of Section 63 in my opinion is to leave the special rights conferred on minors by Regulation X of 1831, whether they are technically landholders or not, unaffected by the Act.
14. We have therefore to see whether plaintiff comes within the protection of Regulation X of 1831. It is admitted that his right to the property in question is that of the last surviving member of the joint family of his father and himself. Can it be said within the words of the regulation that the property 'descended to him by the regular course of inheritance' Strictly those words are far from appropriate to property taken by survivorship, which has not really descended to plaintiff and to which he is not heir. But I agree with my learned brother that it is probable that in 1831 when the true incidents of survivorship were less clearly recognized than now, those who enacted Regulation X of 1831 intended the words quoted to include property taken by survivorship by a minor who was the last surviving member of a joint family. The property of such a minor would need protection no less than that of a minor who took as heir. Moreover the use of the word 'accession' at the end of the sentence points to something not confined strictly to inheritance by an heir being intended. I agree that the sale was in contravention of the Regulation and that the appeal must be dismissed with costs.