SECRETARY OF STATE FOR INDIA IN COUNCIL REPRESENTED BY THE COLLECTOR OF SOUTH KANARA Vs. DUGGAPPA BHANDARY

JUDGEMENT

(1.) This is a case of an alleged escheat of the properties of an Aliyasantana family of South Kanara. The undisputed facts are as follows: About 1850 the Haladi family consisted of two members, Puttu Shettithi and her son, Daraya Shetti. One Venkamma Shettithi was then adopted from another family and she had a daughter, Kollu Shettithi, who married Daraya Shetti's son Nandiappa Shetti and died in 1872. They had a daughter Durgi Shettithi, who died while still a minor in 1876. In 1864, Daraya Shetti executed what is called a Tahanaman, Ex. DD, in which he stated that there were no other heirs in his family except himself and Kollu Shettithi. He then entrusted the management of the family and the family property to his son Nandiappa Shetti and he also made a provision that if Kollu Shettithi had no issue, Nandiappa Shetti should enjoy the property mentioned therein. Daraya Shetti died in 1866, and from that time Nandiappa Shetti appears to have been in possession and management of the family property. Kollu Shettithi died at about the age of 20 in J 872, and her daughter Durgi Shettithi died in 1876. In 1878 four persons belonging to the Kavanjur family brought a suit against Nandiappa Shetti and others on the ground that they were members of Daraya Shetti's family entitled to succeed to his estate. In the Appellate Court, the suit was dismissed and from that date Nandiappa Shetti appears to have remained in possession of the property. In 1886, he sold the property to his wife Venkamma Shettithi and his son Koraga Shetti. In 1898 in pursuance of a compromise of pome litigation in this Venkamma Shettithi and her fop. re-sold the property to Veeranna Shetti, an elder brother of Nandiappa Shetti. After Veeranna Shetti's death defendants Nos. 1 and 2 came into possession. In 1903 one Koraga Shetti, P. W. No. 12, sent in petitions to the Kevenue Authorities stating that the property of Daraya's family had become escheated to Government, and an enquiry was held, but in 1905 the proceedings were dropped. They were revived inl910 on the petition of one Ganapa Shetti, and in 1911 the Government ordered the property to be escheated.

(2.) The main question for determination is whether this property has escheated to Government. The Subordinate Judge has found that there were reversionary heirs alive at the time of Durgi's death. In coming to this conclusion he seems to have thrown the burden of definitely proving the absence of heirs upon the Government and, inasmuch as the Government dropped the escheat proceedings in 1905, he holds that there was an admission by the Government that there was an heir to the property in existence when Durgi died. In cases of this sort, as pointed out in Gridari Lall Roy V/s. Bengal Government 12 M.L.A. 448 at p. 469 : 10 W.R.P.C. 31 : 1 B.L.R.P.C. 44 : 2 Suth. P.C.J. 159 : 2 Sar. P.C.J. 282 : 20 E.R. 408 : 3 Mad. Jur. 386 : 1 Ind. Dev. (N.S.) 28, it is for the Government to prove at least -prima facie, that the last holder died without heirs and then it is open to the claimant to prove either his own title, or to set up the title of a third party. The first question then for determination is, has Government proved at least prima facie that Durgi Shettithi died without heirs? On this point we have the fact that in 1850 the family was becoming extinct and an adoption was considered necessary. The adopted lady had only one daughter and she died leaving only Durgi Shettithi, who died without issue. We then have the recital by Daraya Shetti in Ex. DD that in 1864 there were no other heirs in the family and a provision was made that on the extinction of the "family, Daraya Shetti's son was to succeed to the property. Under the Aliyasantana Law, this son was in no sense an heir. When the last family member died in 1876, no heirs came forward until 1878, when the members of the Kavanjur family filed their suit. Their claim was negatived and since that date, no claimant came forward until the Government issued a notice in 1903 inviting claimants to the property. In 1905 the defendant's predecessor set up his title under a transfer from Nandiappa Shetti, but it is not disputed that Nandiappa had no legal title to the property. Another claimant who came forward then was one Anthaya Shetti of the Ghoradi family, who claimed to be a member of Daraya's Haladi family. It is admitted by P. Ws. Nos. 3 and 12 that Anthaya Shetti belonged to a family which had long ago been divided from Daraya's Haladi family, but the question is whether the relationship was not so remote as to debar that family from claiming as heirs. Anthaya Shetti had a brother named Sesha Shetti, who attested Ex. DD in which there is the recital that the Haladi family had no other heirs. In revenue proceedings of 1865 Kollu Shettithi wife of Nandiappa Shetti, filed a vakalat in which she referred to this Ghoradi Sesha Shetti as her brother in the family. The vakalat ia not now in evidence, but there is secondary evidence of this recital. The Subordinate Judge seems to think that this vakalat has been suppressed by the Government, but there is really no basis for this supposition. The Government Pleader of South Kanara at that time appears to have attached extreme importance to the above recital in the vakalat and apparently treated it as an admission that Sesha Shetti was related to Kollu Shettithi and accordingly, when it was proved that Anthaya Shetti was a brother of this Sesha Shetti, the Government Pleader expressed his opinion that the Government had not a good case. This recital is contained in a document executed by a girl, who was a minor or at any rate very young at the date of execution, and, in my opinion, too much importance was attached to the recital. It is notsuggested that Sesha Shetti was really her uterine brother, and the expression may be due either to the fact that in many proceedings before the Revenue Authorities, parties were only allowed to be represented by Vakils or by friends or relations, or it may be due to the fact that this Shesha Shetti was a member of the natural family of Kollu Shettithi's mother, or again it may be a mere honorific term. This recital is all that can be opposed to the strong circumstantial evidence showing that no heirs existed at the time of Durgi Shettithi's death. The judgment in the appeal in which the Kavanjur family's claim was dismissed is rejected by the Subordinate Judge as merely deciding that the Kavanjur members were not undivided members of the Haladi family. Some of ^he passages in the judgment support this inference, but it must be remembered that there is no clear evidence as to the law of inheritance to an extinct Aliyasantana family. It has been definitely laid down in the case of Marumakathayam families in Malabar, which are governed by rules very similar to those applicable to Aliyasantana families, that when a tarwad, or family, becomes extinct, the other tanvads who had become divided from that branch are entitled to succeed but in this Presidency it has never been definitely decided which branch has the preferential claim, whether the branch which is most nearly related in blood or the branch which became divided at the latest point of time. In any case it cannot be held that a divided family, however long it may be since the division took place, necessarily succeeds, and I think there is considerable force in the observation in Mr. Justice Sundara Iyer's Book (Professional Ethics) at page 191 that "there must at least be community of pollution in order to constitute heirship". Under Hindu Law heirs must come within 14- degrees of the deceased and similarly there must be some limit to the remoteness of relationship in Aliyasantana families, and it is unlikely that heirship would extend to a remote relation who did not observe pollution. In the present case it is in evidence that Anthaya Shetti of Ghoradi family was divided off from the Kavanjur family, and it is alleged that they both originally formed one family jointly with the Haladi family. Inasmuch, as the claim of the Kavanjur family has been negatived by the decision of the District Court, prima facie the Ghoradi family which was a branch of the Kavanjur family would equally be disentitled to succeed. In these circumstances Government must be held to have adduced sufficient evidence to make outa primafacieoase that Durgi Shettithi died without heirs. If the defendants wish to negative this contention, it lies upon them to prove that this Anthaya Shetti, or any other person whom they may choose to set up was actually an heir to Durgi Shettithi. For proving this they merely rely on the fact that the Government dropped the escheat proceedings in 1905 and on the evidence of P. Ws. Nos. 3 and 12 that tha Haladi family and Anthaya Shetti's family divided long ago, but both these witnesses couple this admission with a statement that Durgi Shettithi had not any heirs, thus showing that, in their opinion, the relationship was too remote to constitute heirship. It is, therefore, unnecessary in this case to decide a point which has been argued at some length, viz, the exact nature of kinship which would constitute a person an heir under the Aliyasantana Law. On this point, therefore, (find that Dargi Shettithi died without heira and that the property escheated to Government.

(3.) The next point for consideration relates to the alleged mulgeni rights created by Daraya Shetti in the plaint property. In 1836 he granted a mulgeni lease to the Kolkebail family. This was transferred (excepting one small portion bearing a rental of annas 4) to Nandiappa Shetti, Daraya's son-Vide Ex. III. Again in 1862 Daraya Shefti executed another mulgeni lease in favour of his wife Krishnarna Shettithi. It is contended for the respondents that these two mulgeni leases are binding on the property. So far as the first lease in favour of Nandiappa Shetti is concerned, we find that after the judgment of 1856 there is no record of its existence; on the contrary we see that in Ex. which definitely refers to the mulgeni lease in favour of Krishna Shettithi there is no reference to the lease in favour of Nandiappa Shetti. Inasmuch as Nandiappa Shetti was very intimately concerned in Ex. DD, the omission, I think, is very important. Both the above mulgeni leases are in respect of plaint item No. 2 in Sch. A, and it would appear from the fact that the second mulgeni lease is said to be in respect of property with a beriz of lis. 72 that it included the whole of item No. 2. The mulgeni lease in favour of Nandiappa Shetti was for land bearing a beriz only of Rs. 24. It is, therefore, very probable that the prior mulgeni in favour of Darayya's son was merged in the later geni chit in favour of his wife whose heir the son would be." It is certainly quite clear from Nandiappa Shetti's dealings with the property after 1876 that he never specifically put forward a claim to his mulgeni right. It may, therefore, be inferred in the absence of evidence to the contrary that this mulgeni right ceased to exist, at any rate before 1864 when Ex. DD was executed. As regards the second mulgeni in favour of Krishna Shettithi it is argued by the learned Government Plaader that it was an invalid grant and is not binding on Government. That it is not a valid grant may be conceded, for the proceedings evidenced by the judgment Ex. VII go to show that the transaction was a collusive one entered into by the manager of the family in order to benefit his wife. As there was at least one other member of the family living on the date of the grant it would not be binding on her unless it were for family necessity, and of this latter there is no evidence. It is then contended for the respondents that the Government has no right to object to the geni chit, firstly, on the ground that no reversionary heir can question an alienation made by a member of the family, and secondly, that the right to question it is barred by limitation. In support of the first contention the respondents rely on Thayyil Mammad V/s. Purayil Mammad 60 Ind. Cas. 118 : 44 M. 140 : 12 L.W. 634 : (1920) M.W.N. 768 : 39 M.L.J. 702 : 29 M.L.T. 45 in which it was held that under Maramakathayam Law, the Attaladakkam heir, i. e., the reversionary heir succeeds only to such of the properties of the tavazhi as have not been disposed of by its last members. This decision appears to be opposed to an unreported decision in Second Appeal No. 857 of 1884, and accordingly it would seem only natural that when a reversionary heir succeeds to the right of a person entitled to question the alienation, the reversioner himself would prima facie have that right. It is, therefore, possible that the decision in Thayyil Mammad V/s. Purayil Mammad 60 Ind. Cas. 118 : 44 M. 140 : 12 L.W. 634 : (1920) M.W.N. 768 : 39 M.L.J. 702 : 29 M.L.T. 45 may require re-consideration, but for the purpose of this suit, I think the question can bo decided on the second contention raised by the respondents, viz., the bar of limitation.