V S NATARAJAN Vs. RANI KANNUTHAI

JUDGEMENT

(1.) THE question that arises for decision in this appeal is, whether the buildings situate in an impartible estate which has been notified under the provisions of the madras Estates (Abolition and Conversion into Ryotwari) Act, 1948 (Madras Act xxvi of 1948) hereinafter referred to as the Abolition Act, vesting in the landholder under the provisions of Section 18 (4) of the Abolition Act, continued to retain their character of impartibility or not.

(2.) DEFENDANTS 20 to 25 in O. S. No. 26 of 1956 on the file of the Court of the subordinate Judge of Tirunelveli are the appellants herein. The suit itself was instituted as an interpleader one by the Court of Wards, Madras represented by the Estate Collector of Sivagiri Estate. The last principal holder of the estate, one v. R. P. , Chinnathambiar, Zamindar of Sivagiri, applied to the Court of Wards, for the estate being taken over and managed by it, as it was in an involved condition. The Court of Wards took over the management of the estate in 1941 under the provisions of the Court of Wards Act 1 of 1902 and continued in management till the estate was taken over by the State Government on 3-1-1951 under the provisions of the Abolition Act. Defendants 1 and 2 are the widows of the last landholder, who died on 16-8-1955. Defendants 3 and 4 are his sons by the first wife, namely, first defendant. Defendants 5 and 6 are the minor sons of the landholder by his second wife, the second defendant. The third defendant is the seniormost male member of the family. The third defendant claimed the entire properties in himself as the seniormost male member and heir of the last landholder. The second defendant also claimed the entire properties on behalf of her minor son, the sixth defendant, on the ground that he alone was an undivided member of the family of the last landholder. Defendants 2 and 3 by their petitions dated 31-7-1955 and 23-9-1955 respectively addressed to the Court of Wards claimed the entire estate as their to the exclusion of others. Since the dispute involved the right of succession to the estate and a division of the properties among the defendants who were setting up rival claims, the court of Wards filed the interpleader suit referred to above impleading all the parties who claimed any right to or interest in the properties. Among the properties described in the schedules, Schedule II to the plaint comprises buildings. With regard to the said buildings, the third defendant, the seniormost male member in the family put forward the contention that he alone was exclusively entitled to those properties and the other members of the Zamindar's family were not entitled to claim any share in the same as members of the joint family. The third defendant had alienated some items of the properties in the second schedule to the plaint in favour of 18th defendant who had also purchased certain other items in that schedule in Courtauction sale and consequently the 18th defendant himself put forward the same contentions as those put forward by the third defendant. During the pendency of the suit, the 18th defendant died and the present appellants were brought on record as the legal representatives of the deceased 18th defendant. In their written statement, they reiterated the contentions put forward by defendants 3 and 18 as to the buildings which were described in the second schedule to the plaint belonging exclusively to the third defendants and he being competent to dispose of the same and the other members of the family not having any right to a share therein. In the suit itself it was decided at an earlier stage that the civil court had no jurisdiction to deal with the lands which were originally included in the plaint but it had jurisdiction to deal only with the buildings described in Schedule II to the plaint. Consequently the suit came to be disposed of by the learned Additional Subordinate Judge, Tirunelveli, on 29-3-1965 with reference to the said buildings alone. The question that he had to consider was, whether the said buildings continued to be impartible and therefore, survived, on the death of the last landholder on 16-8-1955, to the third defendant, who was the seniormost male member of the family and the third defendant was therefore competent to dispose of the same and the other members of the family had to share in them. The learned Additional Subordinate Judge concluded: "the building falling under Schedule 2 of the plaint were granted under provision of Section 18 (4) of the Abolition Act only to the father of defendants 3 to 6 and husband of defendants 1 and 2, who was the last zamindar of Sivagiri and it was granted personally to him and the abolition contemplated by the Abolition Act was not merely of the geographical estate or what was known as the zamindary, but also of the impartibility. The 3rd defendant and his alienees the 18th defendant or defendants 20 to 25 are not entitled to claim that the 3rd defendant alone is entitled to take the property and not defendants 1, 2, 4 to 6 and 13 and 14 (being sons of the last landholder through his permanently kept concubine ). Defendants 1 and 2 being the widows of the last holder of the estate and defendants 4 to 6 and 13 and 14 also being the sons they must also be held to be entitled to have succeeded to the estate. " in view of this conclusion, the learned Additional Subordinate Judge passed a decree declaring

(3.) MR. V. Vedantachari, learned counsel for the appellants, contends that the abolition Act does not make any provision for putting an end to the impartible character of the buildings vesting in the landholder under Section 18 (4) of the abolition Act and therefore the buildings continued to be impartible and on the death of the last landholder they devolved on the seniormost member, namely, the third defendant, who had the competency to deal with the same absolutely. His further contention is that specific provision has been made for dealing with the compensation amount payable in respect of an impartible estate taken over under the Abolition Act in Section 45 (6) and a similar provision has been made with regard to the lands in respect of which a ryotwari patta may be granted to the landholder under Section 12 or Section 14 of the Abolition Act in Section 47 (3), treating the said compensation as well as the lands as if they belonged to the joint hindu family of the shares, the said shares having been enumerated in Section 45 (2) (a) of the Abolition Act as the principal landholder and his legitimate sons, grandsons, and great-grandsons in the male line living or in the womb on the notified date including sons, grandsons and great-grandsons adopted before such date, and as if a partition of the said compensation and the lands had been effected among the said sharers on the notified date. Bu on such provision has been effected among the said sharers on the notified date. But no such provisions has been made in respect of buildings vesting in the last landholder under Section 18 (4) of the Abolition Act. He also contends that the repeal of the Madras impartible Estate Act, 1904 by Section 66 of the Abolition Act in its application to an estate taken over under the Abolition Act will not have the effect of putting an end to the impartible character of such buildings. On these grounds the case of the appellants is that the suit buildings survived exclusively to the third defendant herein and therefore he was competent to alienate the same in favour of the 18th defendant.