ULAGALUM PERUMAL SETHURAYAR Vs. RANI SUBBALAKSHMI NACHIAR

JUDGEMENT

(1.) This is an appeal against the decree of the Subordinate Judge of Tinnevelly granting the plaintiff possession of the properties mentioned in the plaint Schedules A to C and E and the moveables mentioned in Schedule 1 with mesne profits (Schedule D) to be ascertained. Schedule A abovementioned consists of the impartible Zamindari of Urkad. One Section Kotilingam Sethurayar was the Zamindar of Urkad on 2nd June, 1902, when the first Impartible Estates Act was passed. On the 29 May, 1902, i.e., four days before the coming into force of the Impartible Estates Act of 1902, he executed a deed of settlement (Ex. D). At that time he had one son K. Kotilinga Sethurayar by his deceased first wife, and had married a second wife who was enceinte. Under the deed of settlement (1) he reserved for himself the estate for life in the Zamindari (2) he settled the Zamindari absolutely on the child to be born by his second wife Thanga Pandichi provided the child is born alive and a male with a defeasance clause in case the child predeceased the settlor without leaving a male issue (3) in case a male child was not born alive, the property was to be settled on Thanga Pandichi absolutely with a clause of defeasance, in case she died without leaving a male issue in favour of his brother's son. He makes a provision for a house worth Rs. 2,000 for his eldest son and also provides for his maintenance at the rate of Rs. 75 per mensem, for his brother's son at the rate of Rs. 125 per mensem, for his mother at the rate of Rs. 70 per mensem, for his step grandmother at the rate of Rs. 33 1/2 per mensem and for his second wife at the rate of Rs. 70 per mensem. The document was executed and registered at Mylapore, Madras, where he must have gone for legal advice in connection with the settling of its terms. A son was born on the 13 August, 1902, - Meenakshisundara Vinayaga Perumal. Afterwards the second wife died in 1904 in child-birth. The Zamindar married a third wife and by her he had a son Ulagalum Perumal who was born in June, 1906, and who is the first defendant in the suit. Meanwhile the eldest son K. Kotlinga died in 1903. It may be mentioned here that the Impartible Estates Bill was published on the 11 May, 1902, and the Zamindar executed the deed of settlement in anticipation of its being passed into an Act. After the Act his power of disposal over the property was very limited as under the Impartible Estates Act the position of a Zamindar is analogous to that of the manager of a Hindu Joint family or that of a Hindu widow. It is also agreed on all hands that the motive for the execution of the settlement deed was that he conceived a dislike for his eldest son because he entered into a marriage against his father's wishes. The Zamindar died on the 7 January, 1907. On the 4 March, 1907, the Court of Wards took charge of the estate on behalf of the minor Meenakshisundara and also the guardianship of both the sons, i.e., Meenakshisundara and the first defendant Afterwards in 1923 the estate was handed over to Meenakshisundara when he attained majority. In July, 1929, he died leaving his widow Rani Subbalakshmi Nachiar who is the present plaintiff. Immediately after his death the Collector stated that he would recognise the first defendant as the heir and referred the plaintiff to a regular suit. The present suit was filed on the first October, 1929, to recover possession of the Zamindari (Schedule A) and other connected properties. Schedule B relates to Devasthanams, charities, Kattalais and other endowments of which the Zamindar for the time being was the trustee. Schedule C relates to jewels, silver vessels and other moveables. Schedule D relates to mesne profits. The plaint also -contains an allegation that sometime after Meenakshisundara took charge of the estate he and the first defendant entered into a partition arrangement dividing the partible properties under which the properties in Schedule E fell to the share of Meenakshisundara and the properties in Schedule F to the share of the first defendant. Accordingly the plaintiff prayed for possession of the properties in Schedule E also. The second defendant who is a cousin of Section Kotilinga was impleaded as he was appointed manager by the last Zamindar under a title deed. Defendants 3 to 11 were tenants under rival leases. This portion of the suit has been either decided or compromised and we have got nothing to do with these defendants in appeal. The plaintiff having got a decree as prayed for, the first defendant files this appeal. His contention was that even if Meenakshisundara got a vested remainder in the Zamindari under the deed of settlement (Ex. D) which had fallen into possession on the death of his father, still he took it only as a member of the joint family and though for purposes of enjoyment he was the only person competent to enjoy the Zamindari on account of its impartible nature still for purposes of succession, it is joint property and the next heir has to be chosen on the footing of succession to joint family property, i.e., he contended that the property descended by survivorship to the first defendant and not to the plaintiff who would be the heir only if the suit property is the separate property of Meenakshisundara. This contention was negatived by the Court below and is repeated before us.

(2.) The main point in the argument for the appellant as urged by his Advocate Mr. Venkatrama Sastri is that though when impartible property is alienated to a stranger, the stranger takes it free of all jointness, i.e., as his separate property, still when the alienation is made to a member of the family the member takes it as joint family property by reason of its character prior to alienation. Almost at the threshold of this argument we are met with this anomaly, namely, that if Meenakshisundara took the Zamindari under the settlement as joint property, K. Kotilinga and the first defendant would be members of the joint family of which Meenakshisundara would be the head being the Zamindar and the others would be entitled to maintenance only, so that if Kotilinga survived Meenakshisundara dying without male issue he would be entitled to succeed. But this is the very thing which the settlor desired should not happen. According to the contention of the appellant, the effect of the settlement is merely to supersede K. Kotilinga and to appoint Meenakshisundara as the Zamindar in his stead and he relies on instances of such supersession of one branch in favour of a junior branch as supporting his contention. These instances are (1) Konammal V/s. Annadana (1927) L.R. 55 I.A. 114 : 54 M.L.J.. In that case it appears that when Lakshmanappa died in 1822 he was succeeded by the second son though the eldest son was living. What happened then was described as a relinquishment by Lakshmanappa to this second son because the eldest son was of weak intellect and his son was an infant. The Courts found as a fact that by an arrangement between the Poligar and the adult members of his family the Paliyam was transferred to the second son Annadana and that information of this was given to the Revenue Officials and was recorded by them. (Vide page 197). (2) a similar supersession of an elder by the second line and later on of the younger line by the elder line in Naraganti Achammagaru v. Venkatachala Nayanivaru (1881) I.L.R. 4 Mad. 250 and Sri Rajah Yanumula Venkayamah v. Sree Rajah Yanumula Boochia Venkondora (1870) 13 M.I.A. 333. It appears in that case the fifth Mansubdar Malappa Dhora fell out with his overlord. Thereupon Bapan Dhora turned out the said Malappa Dhora and took possession of the estate as the sixth Mansubdar. But it was held that Bapan Dhora took the estate on behalf of the rest of the undivided family. Now it appears that in the first and third of the above cases there is no document evidencing the transaction and the Courts inferred from the particular facts that a line was superseded or the Mansubdar was expelled with the result that the Zamindar in the first of the cases took it as head of the joint family and, in the second case, of the rest of the family other than Mallappa Dhora. In the decision in Naraganti Achammagaru V/s. Venkatachalapathi Nayanivaru (1881) I.L.R. 4 Mad. 250 two agreements were produced and it was held that they constituted a family arrangement. What was abandoned was only a "preferential right to the immediate enjoyment of the dignity of the Palayagar and actual possession of the estate". It was also observed that there was no evidence of any more extensive abandonment of their rights by the elder brothers of Kuppi Naidu (Vide page 261). It must also be remembered that at the dates when the incidents in the above three cases happened it was supposed that the owner of an impartible Zamindari was under the same restrictions in respect of the alienation of the Zamindari as the owner of partible property, when there are other male members in the family such as sons or brothers. It was only in 1888 that the right of the holder of an impartible Zamindari to alienate property to any person he liked without any justifying necessity was recognised. Prior to that date as no Zamindar was conscious of any larger power it would be unreasonable to attribute to a Zamindar an intention to effect an alienation exceeding his powers as they were then supposed to be. The three instances on which the appellant relies are therefore in my opinion dissimilar to the case before us. In my judgment in the case in Annadana V/s. Konammal (1922) 17 L.W. 107 which was affirmed by the Judicial Committee in Konammal V/s. Annadana (1927) 54 M.L.J. 504 : L.R. 55 I.A. 114 : I.L.R. 51 Mad. 189 (P.C.). I discussed the facts of each of these cases separately. At pages 120 and 121 I discussed the facts of Naraganti Achammagaru V/s. Venkatachala Nayanivaru (1881) I.L.R. 4 Mad. 250 and at pages 122 to 124 I discussed the history of the family in Rajah Yanumula Venkayamah V/s. Sree Rajah Yanumula Boochia Venkondora (1970) 13 M.I.A. 333 and it is unnecessary to repeat those observations here. In the present case we have got a Zamindar trying to dispose of his property in full consciousness of the power of alienation he possessed according to the decision of the Judicial Committee in Sartaj Kuari V/s. Deoraj Kuri (1888) L.R. 15 I.A. 51 : I.L.R. 10 All. 272 (P.C.) which was followed up by the decision in Sri Raja Rao Venkata Surya Mahipathi Ramakrishna Rao Bahadur V/s. The Court of Wards (1899) L.R. 26 I.A. 83 : I.L.R. 22 Mad. 383 : 9 M.L.J. (Sup.) 1 (P.C.), which was a case of a will and not of alienation inter vivos. With the full knowledge of his power the Zamindar intended to set aside his eldest son and for this purpose he executed a deed of settlement Ex. D by which he vested the whole property in favour of his second son who had at that time existed en ventre sa mere and who was the only person in whom he was Very much interested. He had not at that time married a third wife. It is doubtful whether, if the power of the holder of an impartible estate is less than the power of alienation conceded to him by the decisions in Sartaj Kuari V/s. Deoraj Kuari (1888) L.R. 15 I.A. 51 : I.L.R. 10 All. 272 (P.C.) and Ramakrishna Rao V/s. Court of Wards (1899) L.R. 26 I.A. 83 : I.L.R. 22 Mad. 383 : 9 M.L.J. (Sup.) 1 (P.C.) he can set aside one son in favour of another except by a family arrangement to which all are consenting parties. The first two of the earlier instances must now be regarded merely as cases of family arrangement to which the superseded persons were consenting parties, and in the third case though Mallappa Dhora was expelled, Bapan Dhora came in only as the head of the undivided family. There was no alienation or other transaction in that case which made it possible for one to hold that Bapan Dhora took the estate for himself only.

(3.) A further argument has been addressed on behalf of the appellant in a somewhat different strain - Assuming that Section Kotilinga intended to settle the property on Meenakshisundara, still the effect of such a transaction under the Hindu Law, it is contended, would be that Meenakshisundra would take it only on behalf of the family independent of the intention of the settlor. For this position Mr. Venkatrama Sastri relies on Mitakshara Chapter 1, Section 4. In verse 2 it is said only that property acquired by the co-parcener without detriment to the property of his father shall not appertain to the co-heirs; and it is argued that in the present case it is the father's property that is given to one of the sons. It is true that where the, property is joint family property the father may distribute it among his sons by any equitable arrangement of his own but the sons will take it as ancestral property. But where the property is the father's self-acquired property and he gives it to any one of his sons out of favour it is not clear that the son takes it as ancestral property. The lerarned Advocate-General who appeared for the respondent relies on verse 28 of the same section which says: What is obtained through the father's favour will be subsequently declared exempt from partition.