SUNDARALINGASAWMI KAMAYA NAIK Vs. RAMASAWMI KAMAYA NAIK

JUDGEMENT

(1.) THE question in this appeal is which of the two sons of Nagayasami Kamaya Naik, deceased, the proprietor of the zemindary or palayaput of Saptur in the talook of Trumangalam, Madura district, an impartible estate descending to a single heir according to the custom of primogeniture, is entitled to succeed to it on the death of their elder brother. The father died on or about October 14, 1885, leaving three minor sons, Nagayasami Kamaya Naik, the deceased, and the respondent by his wife Muthuverammal, and the appellant by his wife Nagammal and a daughter. On the death of the father the estate descended to the eldest son Nagayasami, and by reason of his minority the Court of Wards took charge of it under Regulation 5 of 1804. He died on December 21, 1887, a minor and unmarried. The appellant is the senior in age to the respondent, and as such claimed to be entitled to succeed to the zemindary. The Court of Wards on behalf of the respondent asserted his title and assumed charge of the estate on his behalf and continued to manage it. The suit was brought by the appellant by his mother and guardian, and was defended by the respondent's guardian and the Court of Wards. One ground of the defence was that the appellant's mother was not the wife of Nagayasami, the father, but his mistress; and the other, that if she was legally married to him the appellant was not entitled to the zemindary in preference to the respondent, who is the son of the senior wife and the brother of the last owner. It was admitted at the trial in the First Court that the appellant was the senior in age to the respondent, and that the appellant's mother was married after the respondent's mother. It has been found by both the Lower Courts that the appellant's mother was legally married, but that her status and rank were inferior to those of the respondent's mother, the latter being the daughter of a zemindar, while the former was the daughter of an ordinary ryot. Upon this finding the First Court held that the appellant could not be preferred to the respondent, but must give way to him. This was also held by the High Court on appeal. It was treated by both Courts as a question of law, and was raised by the third of the settled issues. This question has not been argued before their Lordships, and it is not necessary to decide it, as the fourth issue was whether, as alleged by the defendant, he is entitled, by the custom prevailing in the Satpur zemindary and in other zemindaries held by zemindars of the same caste in Madura and neighbouring districts, to succeed in preference to the plaintiff by reason of his mother having been married prior to the plaintiff's mother.

(2.) UPON this issue a large quantity of evidence was put in at the trial in the First Court, and appears in the judgments to have been fully considered by that Court and by the High Court on the appeal to it. Both Courts have found for the respondent upon this issue. In the argument of this appeal it was attempted to be shown that in this they were wrong in law, and what was laid down by their Lordships in the case 14 Moore's Ind. Ap. Ca. 585-6, as to the proof which is required of such a custom, was referred to. The judgment in that case is noticed by the High Court in its judgment, and their Lordships see no reason to doubt that it has received the attention of both Courts. There is really in this case no pretence for saying that there has been any error in law; the concurrent findings must be held to be conclusive.

(3.) THEIR Lordships will humbly advise Her Majesty to affirm the decree of the High Court and dismiss the appeal. The appellant will pay the costs.