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TMI Blog1969 (10) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... t defendant. The third defendant died during the pendency of the suit and defendants 7 and 8 are his sons. Defendants 4, 5 and 6 are the sons of the 4th defendant. The 9th and 10th defendants are the sons of the 1st defendant. The 4th plaintiff Shri Raja V.V. Muwa Gopala Krishna died during the pendency of the appeals against the suit in the High Court of Madras. After the filing of the petition of appeal in this Court Sri Raja V. Maheswara Rao, the 6th plaintiff also died. The relationship of the parties will appear from the following pedigree: Sri Rajah Velugoti Kumara Yachendra Nayudu Bahadur | | ---------------------------------------------------------------------------------- | | | | | | | Raj Raja- Muddu Venkata Venu Rama Seshachala- Venkata gopalakrishna Krishna Krishna Gopal Krishna pathi Ranga Lakshmana (died in 1916) (died | | Rao Rao Rao | issue- | | (adopted (adopted (adopted | less in | | to away) | 1921) | | Pithapur) BObbili) | | | Raja Govinda Krishna ------------------------------------ Krishna Bahadur | | (died in 1937) (plff. 1) | | | | Rajeswara Rao Maheswara Rao | | (plff. 5) (plff. 6) | | | | | Madana Gopala (Minor) | | by next friend and | | mother Sreedev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rajagopala Krishna and his successors to the estate should pay to Muddukrishna, Venkata Krishna and Venugopal a sum of ₹ 1,000/- each per mensem for life and on their death a similar amount to their male descendants (Purusha Santhathi) by way of allowance, the amount payable to each branch being ₹ 1,000/- irrespective of the number of descendants. 3. Venugopal, the last of the four brothers, never married and plaintiffs 5 and 6 to the suit are his illegitimate sons. In 1932 plaintiffs 5 and 6 instituted a suit against the Estate (O.S. No. 30 of 1932) claiming maintenance allowance and relying upon the agreement of 1889 and in the alternative on custom and Hindu law. The Subordinate Judge found that custom was not proved and that they were not entitled to maintenance under the Hindu law. But he found that the claimants were entitled to the maintenance under the deed as Purusha Santhathi. On appeal the High Court agreed with the finding of the trial Court as regards the absence of any custom but differed from the interpretation of Purusha Santhathi and held that the term was applicable only to legitimate sons and not to illegitimate sons. The High Court, however, too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for an alternative claim for maintenance at ₹ 1,000/- p.m. So far as the B Schedule properties are concerned, the claim was confined to shares in three items of immovable properties namely (1) Motimahal No. 187, Mount Road, Madras, (2) Venkatagiri Rajah's Bungalow at Nellore and (3) Venkatagiri Rajah's bungalow at Kalahasti. Out of the movable properties the claim was confined to sub-item 8 of item 8 of the B Schedule, that is, a golden howdah. It is the case of the plaintiffs that the repeal of the impartible Estates Act by virtue of the notification will have the effect of changing the character of the properties in the B Schedule and making them partible. It was contended 'that even if for any reason the plaintiffs are not granted a share in the properties of the estate, they must be paid a sum of ₹ 1,000/- per mensem in terms of the original agreement of April 8, 1889. 6. The trial Judge, Subramaniam J., held that the Venkatagiri Zamindari was impartible by custom even apart from the agreement of 1889 and the Impartible Estates Act of 1902 and 1904. Even after the abolition of the Venkatagiri Estate the character of impartibility was found to contin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Bench held the claim that the Venkatagiri Estate was not an impartible estate by custom was devoid of merit. It was pointed out that before the Special Tribunal under the Abolition Act the plaintiffs had advanced the same contention but it was rejected. Plaintiffs 1 to 4 filed an appeal to this Court against the decision of the Special Tribunal. The decision of this Court is reported in Raja Muvva Gopalakrishna Yachendra and Ors. v. Raja V.V. Sarvagana Krishna Yachendra and Ors.: [1963] Supp.2 S.C.R.280 Before this Court plaintiff 1 to 4 did not question the finding of the Special Tribunal that Venkatagiri Estate was an impartible Estate. On the other hand the contention advanced by the plaintiffs was that the Venkatagiri Estate was impartible by custom and that the impartiality continued under the Madras Impartible Estates Act but ceased when the estate vested in the State Government. The Division Bench upon an examination of the evidence held that Venkatagiri Estate was an impartible estate by custom and was not made impartible for the first time under the agreement of 1889 or by Acts of 1902 or 1904. The claim for partition made by plaintiffs in respect of the B Schedule immo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition to the payment of peshkush they had to maintain an armed force for the assistance of Government in times of disorder or rebellion. As a result of the treaty between the East India Company on the one side and the Nawab of Arcot on the other the Administration of that part of the country under the suzerainty of the latter was made over to the British. Under this treaty the Zamindary of Venkatagiri was recognised and the Rajah had to pay to the East India Company what he was paying before to the Muhammadan ruleRs. Sometime later, in accordance with the arrangement entered into between the Zamindars in Western Arcot and Lord Clive, the East India Company took over the responsibility for the preservation of law and order and the Zamindars were relieved of the task of maintaining armed forces and in its stead they undertook to pay an additional revenue on their estate, which was added to the peshkush. It was assured that the fixed peshkush would remain unalterable. In pursuance of this agreement, a sanad was granted in 1802 to the Zamindar of Venkatagiri and other Zamindars embodying the terms agreed upon. Ever since, successive Zamindars held the estate paying peshkush which has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, and approving of, the ruling of the estate by his eldest son the Raja Rajagopala Krishna, and with the intention of passing his time thereafter in future in the meditation of God, as means to attain to the world beyond, transferred on the 28th October, 1878 to the eldest of us four and the heir apparent to the estate, namely, the Raja Rajagopala Krishna, Raja of Venkatagiri, the Venkatagiri Zamindari, the immovable Properties relating thereto, the other immovable properties which were acquired by means of the income of the said Zamindari and all his ancestral and his, self acquired movable properties, excepting the nine lakhs and odd rupees and all the properties connected therewith including its accretions which he retained for his charitable expenses. Since, then, the aforesaid Raja Rajagopala Krishna Yachandra, Raja of Venkatagiri, has been ruling the estate....When the matters stood thus, on account of ill-feeling that arose between some of us, two of us, namely Muddukrishna Yachendrulu and Venkata Krishna Yachendrulu, expressed the desire that the said Venkatagiri Zamindari, the immovable properties connected therewith, the other immovable properties acquired by means of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to our father's opinion about the aforementioned movable properties which were acquired by Raja Velugoti Kumara Yachama and transferred along with the Venkatagiri Estate, the eldest of these four brothers, ... consulted his proper friends. On account of the cogent reasons urged by the respective friends of these both parties, and for the reasons urged by the respective friends of these both parties, and for the reason that all family feuds would (thereby) end and compromised the opinions of one of the parties to this document, namely. Raja Velugoti Kumara Yachama Naidu, on the two points referred to above have been agreed in, as certainly correct and accepted, by the remaining parties, namely, we four brotheRs. Therefore, the parties to this document, namely, we four brothers, and our father Raja Velugoti Kumara Yachama do now jointly and severally hereby determine, agree and affirm as follows: All this Venkatagiri Estate is impartible descendible along the eldest line (of descent) of the said Estate, the immovable properties connected therewith and the other immovable properties acquired by means of the income of the said estate should be enjoyed by the eldest of us fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apathi Rai: [1964]2SCR403 this Court observed: Soon after these decisions were pronounced by the Privy Council, the Madras Legislature stepped in because those decisions very rudely disturbed the view held in Madras about the imitations on the powers of holders of impartible estates in the matter of making alienations of the said estates. That led to the passing of the Madras Impartible Estates Acts II/1902, II/1903 and II/1904. The Legislature took the precaution of making necessary enquiries in regard to impartible estates within the State and made what the legislature thought were necessary provisions in respect of the terms and conditions on which the said estates were held. 11. In these circumstances we see no reason to differ from the finding of the High Court that the Estate of Venkatagiri was an ancient impartible Estate by custom and was not made impartible for the first time under the agreement of 1889 or by the Madras Acts of 1902 and 1904. 12. The next question for determination is what is the effect of the Abolition Act on the rights and obligations of the members of the family in relation to the Venkatagiri Zamindari. According to the plaintiffs the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n estate to mean: (a) any permanently-settled estate or temporarily settled zamindari; (b) any portion of such permanently-settled estate or temporarily-settled zamindari which is separately registered in the office of the Collector; (c) any unsettled palaiyan or jagir; X X X X 13. Section 2(2) of the Madras Impartible Estates Act, 1904 (Madras Act 2 of 1904) defines an impartible estate as an estate descendible to a single heir and subject to the other incidents of impartible estates in Southern India. In relation to the Venkatagiri Zamindari the expression Estate in Section 3(a) of the Abolition Act refers obviously to the Venkatagiri Estate which till then was subject to the operation of the Madras Permanent Settlement Regulation and the Madras Estates Lands Act. In relation to the Venkatagiri Zamindari Section 66 of the Abolition Act enacts that with effect from the notified date the Madras Impartible Estates Act, 1904 shall be deemed to have been repealed in its application to the Estate. The question arises whether the word estate in Section 66 of the Abolition Act denotes the zamindari consisting of properties which stood transferred to the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is therefore difficult to accept the contention of the plaintiffs that the three items of property in Schedule B have become partible properties. Since the Abolition Act did not affect these items the properties have continued to be what they were at the time of incorporation with the zamindari, namely the properties retain their impartible character. 14. We are also not impressed with the argument that as there was incorporation of the buildings with the original impartible estate the building ceased to have any impartible character when the impartibility of the parent estate was gone. It is true that the buildings which are outside the geographical limits of the Venkatagiri Zamindari cannot be brought within the definition of the Estate as defined in the Estates Lands Act and the Abolition Act cannot therefore be made applicable to such buildings. But the buildings have acquired the character of impartibility as a result of incorporation with the parent estate and that character cannot be lost unless the statute intervenes. Section 4 of the Impartible Estates Act itself contemplates parts of an Estate being impartible. In Pushavathi Viziaram Gajapathi Raj Manne v. Pushavat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple embodied in the expression 'cessat ratio cessat lex' does not apply where the custom outlives the condition of things which gave it birth. We accordingly reject the contention of the plaintiff on this aspect of the case. 16. We are also unable to accept the contention of the plaintiffs that the property of the impartible estate was held in coparcenary as joint family property and became partible amongst the members once it lost its character of impartiality. In other words the contention was that junior members had a present interest in the impartible estate and were entitled to a share in the estate once impartiality was removed. In our opinion there is no justification for this argument. The law regarding the nature and incidents of impartible estate is now well settled. Impartiality is essentially a creature of custom. The junior members of a joint family in the case of ancient impartible joint family estate take no right in the property by birth, and therefore, have no right of partition having regard to the very nature of the estate that it is impartible. Secondly, they have no right to interdict alienations by the head of the family either for necessity or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sense negative by the Board in Baijnath's case (2). To this extent the general law of Mitakshara applicable to joint family property has been modified by custom and an impartible estate, though it may be an ancestral joint family estate, is clothed with the incidents of self-acquired and separate property to that extent. The only vestige of the incidents of joint family property, which still attaches to the joint family impartible estate is the right of survivorship which, of course, is not inconsistent with the custom of impartiality. For the purpose of devolution of the property, the property is assumed to be joint family property and the only right which a member of the joint family acquires by birth is to take the property by survivorship but he does not acquire any interest in the property itself. The right to take by survivorship continues only so long as the joint family does not cease to exist and the only manner by which this right of survivorship could be put an end to is by establishing that the estate ceased to be joint family property for the purpose of succession by proving an intention, express or implied, on behalf of the junior members of the family to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the maintenance-holders and apportioning the same among them, have regard, as far as possible, to the following considerations, namely: (i) the compensation payable in respect of the estate; (ii) the number of persons to be maintained out of the estate; (iii) the nearness of relationship of the person claiming to be maintained; (iv) the other sources of income of the claimant; and (v) the circumstances of the family of the claimant. (b) For the purpose of securing (i) that the amount of compensation payable to the maintenance-holders does not exceed the limit specified in Sub-section (4) and (ii) that the same is apportioned among them on an equitable basis, the Tribunal shall have power, wherever necessary, to re-open any arrangement already made in respect of maintenance, whether by a decree or order of a Court, award, or other instrument in writing, or contract or family arrangement. Under the Agreement of 1889 plaintiffs 1 to 4 are entitled to an allowance of ₹ 1,000/- if paid out of the income of the Zamindari, that is to say, the income of the Venkatagiri Estate strictly so called and the income of the properties which did not get transferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Section 14(2)--circumstances which are not applicable to the present case. It is admitted that junior members of the Venkatagiri family were receiving maintenance, under the Agreement of 1889 until the coming into force of the Abolition Act. 18. Section 45(2) of the Abolition Act provides for the ascertainment of the amount of maintenance payable to persons who, before the notified date, were entitled to maintenance out of the estate and its income either under Section 9 or Section 12 of the Madras Impartible Estates Act or under any contract or family arrangement. The total sum payable to the maintenance holders out of the compensation should not under Section 45(4) exceed one-fifth of the remainder of the compensation after the claims of creditors are satisfied. It is not possible to accept the argument of defendant No. 1 that Section 45 should be construed as extinguishing the right secured to junior members under the provisions of contract or family arrangement granting a new right limited to the measure stated in the section. It is manifest that Section 45 is concerned only with the apportionment of compensation amount. The section is concerned with the rights and lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 1,37,000/-Interest on this amount at 3 1/2% p.a. works out to ₹ 4,795/- p.a. The trial Judge directed that plaintiffs 1 to 4 would be entitled to payment of such additional sums which together with interest would add upto ₹ 1,000/- p.m. In other words the plaintiffs 1 to 4 were held entitled to recover from defendant No. 1 the difference between the interest payable on the compensation and the sum of ₹ 1,000/- p.m. and the difference was made a charge on items 1, 14 and 16 of Schedule B properties. The trial Judge directed that interest should be calculated at 3 1/2% p.a. on the compensation amount. In our opinion the proper rate of interest should be 5 1/2% p.a. Subject to the modification we consider that the decree granted by the trial Judge should be restored if during any part of the period subsequent to September 7, 1949 plaintiffs 1 to 4 have not been in receipt of the amount of ₹ 1,000/- per month calculated in the above manner they would be at liberty to file an application for the recovery of such sums as may be needed to make up the allowance to ₹ 1,000/- per month for that period. For such decree as may be passed on such application a ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld the aforesaid person who dies without purusha santhathi leave any widow or widows and maintenance has to be paid to them, only the nearest gnatis who get the allowance of such deceased person in the manner mentioned above shall be liable therefore. Further should any of the said three branches of our family become extinct by the total absence of purusha santhathi either by way of aurasa or by way of adoption, the allowance being paid to that branch shall be stopped subject to the condition that, if there be then a widow or widows left of the last male who died in that branch, one-half of the allowance of rupees one thousand (Rs. 1,000) that was being paid to that male, namely, Rupees five hundred (Rs. 500), shall be paid to the widow or widows of the person who so died without purusha santhathi as maintenance for life . This clause provides that on the death of any male member entitled to maintenance allowance under the deed without leaving any male issue either by birth or adoption the allowance which was received by that person should go according to Hindu Law to the Gnatis who in the same line as the deceased are nearest to such deceased member. Plaintiffs 5 to 7 alternat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the will which are to the following effect: Further, as many matters under dispute between myself and my brothers have to be settled, the value of some goldware, silver were jewel of precious stones etc. belonging to the Estate Regalia was paid to my brothers from out of myself acquired money and I have taken possession of these items at the time of partition. Besides these, some more jewels of precious stones, etc., which were acquired, were paid for from my self-acquired money and have been received by me. Clause 6 runs thus: The jewels made of precious stones as well as gold and silverware which fell to my share from out of the aforesaid share inclusive of those which have been improved and converted and mentioned in detail in Schedule 'A' appended hereto. The jewels set with precious stones and gold and silver were got by me from my brothers at the time of partition of paying their value to them (brothers) from out of self acquired money.... These clauses make it clear that the golden howdah had been divided and nothing was left for further division. In our opinion the Division Bench was right in taking the view that the plaintiffs 1 to 4 are not entit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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