SECRETARY OF STATE Vs. DUGAPPA 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 1872, and her daughter Durgi Shettithi died in 1876.

(2.) 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 said the property to his wife Venkamma Shettithi and his son Koraga Shetti. In 1898, in pursuance of a compromise of some litigation Venkamma Shettithi and her son resold 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 revenue 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 in 1910 on the petition of one Ganapa Shetti, and in 1911 the Government ordered the property to be escheated.

(3.) 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 Gridhari Lall Roy V/s. Bengal Government [1867-69] 12 M.I.A. 448 it is for the Government to prove at leagt 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 ? (His Lordship then discussed whether the evidence adduced by Government established a prima facie case that Durgi Shettithi died without heirs.) 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 tar wads 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 Suhdara Iyer's Book (Professional Ethics) at page 191 that: there must at least be community of pollution in order to constitute heirship.