ULAGALUM PERUMAL SETHURAYAR Vs. RANI SUBBULAKSHMI NACHIAR

JUDGEMENT

(1.) This appeal concerns the succession to the impartible estate of Urkad in the District of Tinnevelly and is brought from a decree dated 19 March 1935 of the High Court of Madras affirming, upon the question now in dispute, the decree (23 April 1931) of the Principal Subordinate Judge of Tinnevelly. Both Courts in India have held that upon the death in 1929 of Minakshi Sundara the estate of Urkad devolved upon his widow Rani Subbulakshmi Nachiar who was plaintiff in the suit and is respondent upon this appeal. The appellant is Ulagalum Perumal, the younger half brother of Minakshi Sundara, who was the first defendant in the suit. It is not now contended that the appellant and Minakshi Sundara were divided. The trial Court held that there had been a partition of the partible property of the joint family, but this finding was reversed by the High Court and is not appealed from.

(2.) In 1902 the zamindar was S. Kotilinga Sethurayar (hereinafter called the settlor), a Hindu governed by the Mitakshara. He held the impartible estate as ancestral property belonging to the joint family, of which he was a member, and not as his separate property. His first wife had died, but he had married again. By his first wife he had a son, K. Kotilinga Sethurayar. His second wife was enceinte. Being displeased with his son he desired to defeat his son's prospect of succession to the estate by making use of the power of alienation recognized as belonging to owners of impartible estates by the decision of this Board in the case in Sartej Kuari V/s. Deoraj Kuari, (1888) 10 All 373. His power of alienation was however in danger of becoming restricted by legislation so as to become no greater than the power of a managing member of a joint Hindu family to alienate ancestral property. A few days before 2nd June 1902, when the Madras Impartible Estates Act, 1902 (Madras Act 2 of 1902), came into force, he executed a deed of settlement dated 29 May 1902, in respect of the impartible zamindari. By that deed he declared that he was dissatisfied with the character and conduct of his son and was desirous that the son should not succeed to the zamindari. He settled the zamindari upon himself for life and subject thereto granted it absolutely to the child with whom his second wife, Thanga Pandichi, was then enceinte, if such child should be born alive and a male. If the child should not be born alive and a male or being born alive and a male should die before the settlor without leaving male issue, the zamindari was to go to his wife Thanga Pandichi absolutely. His son was given a maintenance allowance and a house. The settlor appointed himself trustee of the settled property.

(3.) Thereafter on 13 August 1902, Minakshi Sundara was born of the second wife Thanga Pandichi. In 1903 the settlor's first-born son. K. Kotilinga Sethurayar, died. In 1904 the second wife died, and the settlor having married a third time the appellant Ulagalum Perumal was born to him by his third wife in June 1906. On 7 January 1907, the settlor died and Minakshi Sundara succeeded to the zamindari, the estate being managed on his behalf by the Court of Wards till 1923, when he came of age. He died in July 1929, and as the Collector proposed to recognize his half brother, the appellant as entitled to succeed to the impartible estate, the widow brought her suit on 1 October 1929 to establish her right to succeed. Her case is that when in 1902 her husband took a vested interest in the estate by virtue of his father's exercise of his unfettered right of alienation, the estate ceased to be property of the joint Hindu family as truly and completely as if it had been granted to a stranger to the family. Accordingly, that the principle of survivorship cannot on his death be applied to carry the estate to the eldest member of the senior branch of the family ; and that it descends to her according to the rules which govern succession to separate property. The High Court was careful to point out that the present case raises no question such as might have arisen had Minakshi Sundara died leaving sons - whether the estate in his hands was ancestral as having come to him from his father in the sense that a son would have taken an interest therein at birth. On this subject there has been much divergence of opinion in India and it was left unsettled by the judgment of the Board in Lal Ram Singh V/s. Deputy Commissioner of Partabgarh, (1928) 10 AIR PC 160 at p. 275. It is clear that Minakshi Sundara did not take his interest under the deed of 1902 under any contract or bargain made by him or on his behalf or by any other persons so as to bind him. The settlor was disposing of the estate in full appreciation of his power to alienate, and there is no room for suggestions as to family arrangement or mere relinquishment by the settlor or mere supersession of the eldest son. Indeed, if the settlor's intention be supposed to govern the matter, the provisions of the deed of 1902 indicate, as the High Court notice, an intention that the estate should not continue to be joint family property; as otherwise in certain quite probable events the deed would not effectively exclude the eldest son. In particular should the son to be born die in the lifetime of his elder brother leaving sons, the elder brother would succeed as senior to any of such sons if the property were to pass by survivorship as joint family property.