ULAGALUM PERUMAL SETHURAYAR Vs. RANI SUBBULAKSHMI NACHIAR

JUDGEMENT

(1.) THIS appeal concerns the succession to the impartible estate of Urkad in the district of Tinnevelly, and is brought from a decree dated March 19, 1935, of the High Court of Madras affirming, upon the question now in dispute, the decree (April 23, 1931) of the Principal Subordinate Judge of Tinnevelly. Both Courts in India have held that, upon the death in 1929 of Minakshi Sundara, the estate of Urkad devolved upon his widow Rani Subbulakshmi Nachiar who was plaintiff in the suit and is respondent upon this appeal. The appellant is Ulagalum Perumal, the younger half-brother of Minakshi Sundara, who was defendant No.1 in the suit. It is not now contended that the appellant and Minakshi Sundara were divided. The trial Court held that there had been a partition of the partible property of the joint family, but this finding was reversed by the High Court and is not appealed from.

(2.) IN 1902, the zemindar was Section Kotilinga Sethurayar (hereinafter called the settlor) a Hindu governed by the Mitakshara. He held the impartible estate as ancestral property belonging to the joint family, of which he was a member, and not as his separate property. His first wife had died, but he had married again. By his first wife he had a son, K. Kotilinga Sethurayar. His second wife was enceinte. Being displeased with his son he desired to defeat his son's prospect of succession to the estate by making use of the power of alienation recognised as belonging to owners of impartible estates by the decision of this Board in the case of Rani Sartaj Kuari v. Rani Deoraj Kuari (1888) L. R. 15 I. A. 51.His power of alienation was however in danger of becoming restricted by legislation so as to became no greater than the power of a managing member of a joint Hindu family to alienate ancestral property. A few days before June 2, 1902, when the Madras Impartible Estates Act, 1902 (Mad. II of 1902), came into force, he executed a deed of settlement dated May 29, 1902, in respect of the impartible zemindari. By the deed he declared that he was dissatisfied with the character and conduct of his son and was desirous that the son should not succeed to the zemindari. He settled the zemindari upon himself for life and subject thereto granted it absolutely to the child with whom his second wife, Thanga Pandichi, was then enceinte, if such child should be born alive and a male. If the child should not be born alive and a male, or, being born alive and a male, should die before the settlor without leaving male issue, the zemindari was to go to his wife Thanga Pandichi absolutely. His son was given a maintenance allowance and a house. The settlor appointed himself trustee of the settled property.

(3.) IT is clear that Minakshi Sundara did not take his interest under the deed of 1902 under any contract or bargain made by him or on his behalf or by any other persons so as to bind him. The settlor was disposing of the estate in full appreciation of his power to alienate, and there is no room for suggestions as to family arrangement or mere relinquishment by the settlor or mere supersession of the eldest son. Indeed, if the settlor's intention be supposed to govern the matter, the provisions of the deed of 1902 indicate, as the High Court notice, an intention that the estate should not continue to be joint family property, as otherwise in certain quite probable events the deed would not effectively exclude the eldest son. In particular, should the son to be born die in the lifetime of his elder brother leaving sons, the elder brother would succeed as senior to any of such sons if the property were to pass by survivorship as joint family property.