STRIMATHOO MOOTHOO VIJIA RAGOONADAH RANEE KOLANDAPUREE NATCHIAR Vs. DORASINGA TEVER, ALIAS GOWRY VALLABA TEVER

JUDGEMENT

(1.) THIS is an appeal against the decree of the High Court of Madras, affirming a decree of the Civil Judge, of which the ordering part is in these words: "The Court doth order and declare that as between the Plaintiff and second Defendant, Plaintiff be declared the next in succession to the Shevagunga zemindary; that Plaintiff's claim to maintenance and apartments be dismissed, and that he pay so much of his own costs as may be found due thereon." There was no appeal to the High Court against the latter part of the decree dismissing the Plaintiff's claim for maintenance and apartments, and, therefore, that which is the subject of the appeal must be taken to be the declaration of the two Indian Courts that the Plaintiff is the next in succession to the Shevagunga zemindary.

(2.) THE title to this zemindary was the subject of a very long litigation, which was finally closed by a judgment of this tribunal in the year "1863. The points then decided were, first, that the zemindary was in the nature of an impartible raj, to be held by one member of the family; secondly, that the zemindary, having been granted by the Madras Government, after an escheat, to the istimirar zemindar, was to be treated as his self-acquired property; thirdly, that the right of succession to it was to be determined, not by any particular custom, bat by the general Hindu law prevalent in that part of India, with only such qualifications as might follow from the impartible character of the subject. These propositions were, at least in the latter stages of the litigation, not much disputed. That which was really contested between the parties was that even if the istimirar zemindar were, as he had been found to be, in the strict sense of the term, a member of an undivided Hindu family, the succession to this zemindary, inasmuch as it was his separate self-acquired property, was to be determined by the rules which regulate the succession to the property of one separate in estate, and consequently, that his wife, daughter, and daughter's sons were entitled to inherit it in preference to a brother, a brother's son, or any more remote collateral in the male line. This last point had been first raised by the zemindar's last surviving widow, Angu Moothoo Natchiar, in a suit commenced in 1845. It was decided against her by the Judge of first instance in 1847. She appealed against his decree to the then Sudder Court of Madras, but died in 1850, before her appeal was heard. Thereupon there ensued a very complicated and confused litigation amongst the descendants of the istimirar zemindar, touching their respective titles to succeed to the right claimed by the deceased widow, and to prosecute her appeal. The claimants were, first, Kathama Natchiar, who is the first on the record of the present Appellants, her sister of the whole blood, and her half sister, all of whom seem to have been daughters of the zemindar, then having or being capable of having issue; secondly, Sowmia Natchiar, a fourth daughter, who was a childless widow; and, thirdly, Moothoo Vadooga, a grandson of the istimirar zemindar by a deceased daughter, and, as would appear by the pedigree admitted in this cause, an elder brother of the present Respondent, who is since dead. The final judgment of this Committee determined both the question of representation raised between these parties, and also the question of succession raised in the widow's suit, against the person claiming as nearest male heir in the collateral line of the istimirar zemindar. It determined these questions by a declaration in these words: "We shall, therefore, humbly recommend Her Majesty to reverse the decrees and orders complained of by this appeal; to declare that the suit of 1856, which appears to us to have resulted from erroneous directions given by the Sudder Court"--that was a suit brought by the widow as an original suit--" ought to have been and ought to be dismissed; and in the suit of 1845, to declare that Sowmia Natchiar and Moothoo Vadooga were not, nor was either of them, but that the Appellant and her sisters were, as against the Respondent, entitled to prosecute the appeal, and to recover the zemindary; this declaration to be without prejudice to the rights of the Appellant and her sisters inter se." The sisters, as appears by the admitted pedigree in this cause, have since died. There is indeed a statement in Mr. Moore's report that they were dead at the time when the judgment was pronounced; but, however that may be, it is certain that, under the order of Her Majesty, made in pursuance of that judgment, the first Appellant became the zemindar of Shevagunga, taking it as the heir of her father next in succession to the widow.

(3.) THE Defendants to the suit appeared and set up various defences, the first and second Defendants impeaching the title of the Plaintiff upon several grounds; the third, fourth, and fifth Defendants setting up a case that the zemindary to which their mother had succeeded had either always been or had become her stridhanum; that according to the proper course of succession it would, upon their mother's death, devolve upon them, but that they had assigned and relinquished by deed their rights in favour of their brother, the second Defendant. Upon these pleadings the following issues were settled : "1. Whether or not according to Hindu law petitioner is entitled to succeed to the zemindary of Shevagunga at the death of the present Ranee. 2. Whether or not petitioner is entitled to succeed to the said zemindary at the death of the Ranee by virtue of any peculiar custom which obtains in that zemindary. 3. Whether or not petitioner is estopped by this being 'res judicata' from setting up any peculiar custom. 4. Whether or not petitioner is immediately entitled to the maintenance claimed or what maintenance, as such, or to apartments in the palace, and what apartments. 5. Whether or not petitioner's claim to maintenance and apartments is barred, by the law of limitation. 6. Whether or not petitioner is entitled to the immediate management of the devastanums and chuttrams in the zemindary, and to the honours connected with the said management. 7. Whether this is a suit in which a declaratory decree can be given at all."