ATCHAMMA Vs. PAPIAH

JUDGEMENT

(1.) In this case the estate of the last male owner descended to his widow and on her death in 1877 to their four surviving daughters. According to the law in this part of India they inherited jointly a woman s estate in their father s property determinable on the death of the last survivor when the succession would devolve on the then next heir of their father, the last male owner. Sundaramma, one of the four daughters, excluded and held adversely to her three sisters and, on the expiration of the statutory period of twelve years, their rights of suit became barred and their rights in the property were extinguished, under Section 28 of the Limitation Act, IX of 1908. The present plaintiff, one of the excluded sisters, survived Sundaramma who died in 1905 and instituted within twelve years the present suit in which she sought to recover the estate by right of survivorship from Sundaramma s allienees and her son, the seventh defendant, who is at once heir to his mother s separate estate and the next reversioner to the estate of the last male owner. At the hearing of the Appeal the plaintiff s claim to the whole of the estate was hardly pressed, but it was contended that though she might have become barred as to her own share and the shares of her excluded sisters she was at any rate entitled to succeed by survivorship to the share of her sister Sundaramma who continued in possession and enjoyment of the estate until her death, on the happening on which event, it was argued, the plaintiff became entitled for the first time to succeed to her share. In my opinion this contention is untenable. It has never, so far as I know, been suggested that a member of an undivided family, who has been excluded for the statutory period, is entitled on the death of any undivided co-parcener leaving no direct heirs to represent him, notwithstanding his own exclusion and the statutory extinguishment of his rights in the joint family property, to succeed, with the other co-parceners by right of survivorship to the share of such deceased co-parcener. This contention ignores the fact that this so-called right of survivorship is incident to the right of joint possession and enjoyment of the estate with the others who are jointly entitled and cannot exist separately when the right of joint possession and enjoyment has been lost. This, in my opinion, is a rule of general jurisprudence applicable to all cases of joint tenancy; It is so laid down in Coke on Littleton, 188 (i), where the right of survivorship is treated as jus accrcscendi or right of accretion to the existing interest of the surviving joint tenant, and a Latin maxim, is cited to the effect that there can be no such right of accretion in the absence of an existing interest.

(2.) It has also been expressly applied to India in Katama Natchiar v. The Rajah of Shivagunga (1863) 9 M.I.A., 539 at 611, where the Lords of the Judicial Committee in negativing the right of the other co-parceners to succeed to the separate property of a deceased co-parcener lay down that the right of survivorship cannot exist apart from the right of joint possession and enjoyment: According to the principles of Hindu Law there is co-parcenership between the different members of a united family and survivorship following upon it. There is community of interest and unity of possession between all the members of the family and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased s lifetime a common interest and a common possession. But the law of partition shows that as to the separately acquired property of one member of a united family the other members of that family have neither community of interest nor unity of possession. The foundation, therefore, of a right to take such property by survivorship fails.

(3.) In the present case the plaintiff had no community of interest or unity of possession with her sister Sundaramma at the time of the latter s death and therefore, in their Lordship s language, the foundation of the plaintiff s right to take her sisters share by survivorship fails. This view is also supported by the decision of Jenkins, C.J., in Sachindra Kishore Dey v. Bajani Kant Chuckerbutty (1815) 27 I.C., 250. It would appear, though it is unnecessary to decide the point, that the effect of the interests of the other sisters being barred and their rights being extinguished under the Limitation Act; was to enlarge the estate of Sundaramma and to give her an estate for her own life and the lives of her sisters determinable on the death of the last survivor. I concur in the order proposed by my learned brother. Seshagiri Ayyar, J.