SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF SOUTH CANARA; SUBRAYA KARANTHA Vs. SUBRAYA KARANTHA; THE SECRETARY OF STATE FOR INDIA IN COUNCIL, REPRESENTED BY THE COLLECTOR OF SOUTHCANARA

JUDGEMENT

(1.) This is a suit brought by the plaintiff to declare that the properties in South Canara of the late Zalle Subraya, who appears from Exhibit N to have died in that district in the year Parthiva, 1825--6, escheated to the Crown for want of heirs on the death of his widow Manjamma, who appears to have died at an advanced age in January 1906 at Benares. The suit was brought against the defendant in possession, and the latter in his written statement set up the existence, among other alleged heirs, of the junior widow and the senior widow s daughter and daughter s son of one Venkatapathaya, who are described as residing at Shimoga in the Mysore State. The Subordinate Judge has rejected the case set up as to the other alleged heirs but has held that the descendants of Venkatapathaya are in the line of heirs of the deceased. Before dealing with the facts of this somewhat extraordinary case, it will be well to refer to what their Lordships have laid down in Gridhari Lall v. Bengal Government 12 M.I.A. 448 : 1 B.L.R.P.C. 44 : 10 W.R.P.C. 31 : 2 Suth P.C.J. 159 : 2 Sar. P.C.J. 382 : 20 E.R. 408, the leading Indian case, as to onus which lies on the Crown in claims to escheat. In the Course of the argument in that case Kelly, C.B., observed that in England in a writ of Intrusion or Ejecknent, the Crown must, to take lands by escheat, prove there was an entire failure of heirs, and so also of a Lord of the Manor with respect to copyholds on the death of a tenant without heirs, and cannot rely upon the want of title of the party in possession.

(2.) In that case the Calcutta High Court had rejected the claim of the appellant Gridhari Lall, who had been in possession and recognized by Government as heir but had decided that the decree against him should not be made absolute until the claims of other alleged heirs had been investigated, and had remanded the case with a direction to the District Judge to call upon these and any other claimants to come in and prove their case. Their Lordships, whilst disposing of the appeal on the ground that Gridhari Lall was an heir, deemed it right to take exception to the procedure adopted by the High Court and to point out that, as against a defendant in possession, the Crown was in the position of an ordinary plaintiff in an ordinary suit in the nature of an ejectment. Their Lordships went on to lay down that it lay upon the Grown to prove at least prima facie that the deceased left no heirs, and that the defendant was entitled to set up any jus tertii that might exist. The course taken by the High Court, in their Lordships opinion would have had the effect of causing the other claimants who had intervened as objectors to litigate their title with Government, casting apparently the burden of proof on them, and seemed to their Lordships to deprive the appellant of his right to defend his. possession on the ground of an existing jus tertii. It had been objected for the Crown that it could not be called upon to prove a negative, and it was apparently with reference to that objection that their Lordships guarded themselves by saying that it lay upon the Crown to prove at least prima facie that the deceased died without heirs.

(3.) Coming now to the facts of the present case, the deceased Zalle Subraya died in the year 1826 leaving a widow Manjamma and apparently no other near relations. Manjamma died at Benares in January 1906, having survived her husband for 80 years and having about 50 years before her death alienated her husband s properties in South Canara and removed herself to Benares where she died. No pedigree or family tree showing the alleged relationship has been produced from proper custody, and the defendant is obliged to rely on the pedigrees or statements of relationship which are to be found in the pleadings in the litigation already mentioned. As the alleged common ancestor Venkappia is fourth in ascent from s the deceased who died in 1826, direct oral evidence is not to be looked for. Nor again is there any oral evidence worth considering that either Subraya or his widow ever recognized the alleged relationship a On the other hand there are denials, no doubt, of an interested character by Manjamma in the litigation already referred to. In view of this litigation and I of the conduct of Manjamma in alienating j her properties and removing to Benares, it is not perhaps surprising that no q communication should have passed between p her and Venkatapathiya s family after her emoval to Benares, but the result is that there is no evidence of recognition any more than there is any direct evidence of relationship in support of the defendant s the case. We are in effect left to rely on evidence of assertion of title as reversioners by Vratapithy s line in certain suits filed between 1847 and 1872, in one of which the alleged relationship was found no not to be proved. The Subordinate Judge lays much stress upon the improbability that Venkatapathy s family would have his persisted so long in their claims if they;he had been concocted, but I cannot attach much weight to this argument, and I do not lot think the evidence of assertion it such as it would justify us in holding the alleged Relationship proved in view of the fact that res every assertion appears to have been met to with a denial by Manjamma, and that in ed the only case where the issue was tried there was a finding against it.