I M RATNA MUDALIAR Vs. KRISHNA MUDALIAR

JUDGEMENT

(1.) This second appeal raises an important question of Hindu Law. The plaintiff claiming to be the reversioner to the estate of one Shanmuga, filed a suit for a declaration that an alienation made by the 1 defendant, the mother of Shanmuga, in favour of the 2nd defendant, was not binding on the reversion. The first issue in the case raises the question whether the plaintiff is the nearest reversioner entitled to succeed after the death of the 1 defendant. The decision of this question turns upon the following facts.

(2.) Shanmuga, the last male owner, was the son of Palaniyandi whose father Kunjan was in turn the son of another Palaniyandi, who may be referred to as Palaniyandi the senior. Palaniyandi, the senior had a brother Muthan who was the plaintiff's father. The case has proceeded on the footing that the plaintiff is a legitimate son of Muthu and that the descendants of Palaniyandi the senior were also his legitimate descendants. But, as between Muthu and Palaniyandi the senior, the finding is that they were the sons of the same mother Valliammal but that their paternity is not known, as Valliammal was not a married woman nor the permanent concubine of any known person. It was alleged by the defendants and not disputed that Kunjan had two daughters one of whom has left one or more sons who are alive. On these facts two questions are comprised in the first issue, namely (1) whether the plaintiff can at all claim to be an heir to Shanmuga and (2) whether he is the nearest, presumptive heir, i.e., one entitled to succeed in preference to the son or sons of Kunjan's daughter.

(3.) The District Munsif in para. 7 of his judgment expressed himself in a way which does not make it quite clear whether he thought that the plaintiff was not an heir at all or he thought that the plaintiff must, in any event, be postponed to Kunjan's daughters sons. On appeal the learned District Judge has held that the decision in Viswanatha Mudali V/s. Doraisami Mudaai 48 M. 944 : 91 Ind. Cas. 193 : (1925) M.W.N. 612 49 M.L.J. 684 : A.I.R. 1926 Mad. 1 & 289 also (1926) M.W.N. 182 has decided that the plaintiff is an heir and also in effect that he is a preferable heir to any one who can only claim to be only a bandhu. He understood that decision to lay down that the legitimate descendants of the two brothers can claim all the adjuncts of heritability which in the Hindu Law applied to persons who are the legitimate descendants of the legitimate brothers, that is brothers born of a lawful marriage. In second appeal the question for determination is whether the decision in Viswanatha Mudali v. Doraisami Mudali 48 M. 944 : 91 Ind. Cas. 193 : (1925) M.W.N. 612 49 M.L.J. 684 : A.I.R. 1926 Mad. 1 & 289 also (1926) M.W.N. 182 lays down both the above propositions.