9911796707
TMI Blog1951 (12) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... innathayi alias Veeralakshmi Ammal, and members of the family belonging to the third, forth and fifth branches,. Secession to the zamindari is admittedly governed by the rule of lineal primogeniture modified by a family custom according to which the younger son by the senior wife is preferred to an elder son by a junior wife. According to this customs T. B. S. S. Rajaya Pandiya Naicker of the third branch was entitled to the zamindari after the death of the Kamaraja II of the second branch. His Claim was denied by the widow and by Kulasekara Pandiya Naicker of the fourth branch both of the whom claimed the zamindari on the different grounds. It was alleged by the widow that the zamindari was the separate and exclusive property of her husband and that being so she was entitled to it under the rule of Mitakshara applicable to devolution of separate property. Kulasekara of the fourth branch claimed it on the basis of the that Sundra Pandiya Naicker of the third branch who dies in 1893 had separated from the family and had renounced his and his descendants rights of succession to the zamindari and the third branch having thus lost all interest in the joint family zamindari, he was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the holder of this impartible raj. He was succeeded by his an Rajaya Naicker who died in 1849 leaving him surviving five sons, Bangaru Tirumalai Bodi Naicker, Viswanatha Naicker, Sundara Pandiya Naicker, kulasekara Pandiya Naicker and Chokkalingaswami Naicker, representing the first second, third, fourth and fifth branches respectively. Rajaya Naicker was succeeded by his eldest son Bangaru Thirumalai Bodi Naicker who died on the 27th October 1862, and was succeed by his son. T. B. Kamaraja Pandiya Naicker (Kamarajia I) who remained as zamindar till his death on 15th December 1888. He had no son and on his death his widow Kamuluammal got into possession of the estate. Proceedings for transfer were taken in the revenue court for registry of the Zamindari and statements of the male members of the family belonging to the second, third, fourth and fifty branches and of the widow were recorded by the Deputy Collector. On 18th December, 1888, the representative of the these branches stated that the had no objection to Kamuluammal enjoying the zamindari. On the 19th Kamuluammal asserted that the her husband by his will had bequeathed the zamindari to her and had given her permission to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May, 1889, Kandasami filed O. S. No. 16 of 1889 in the court of the Subordinate Judge of Madura impleading the widow and the Collector as defendants for recovery of the entire zamindari as it then existed, including the villages of Boothipuram and Dombacheri and the pannai lands. 14. He alleged that the he as a member of the undivided Hindu family was entitled to succeed to the zamindari by survivorship and in accordance with the established rule applicable to the devolution of this zamindari. Kamuluammal denied this claim and asserted that the zamindari was the separate property of her husband and she was entitled to it in preference to her husband's and she was collaterals. She also based her claim on the alleged will of the husband. Sundara Pandiya of the third branch laid a claim the zamindari and the pannai lands on the grounds that he as senior in age amongst the family members was entitled to them in the preference to Rajaya on the rule of simple primogeniture. In view of the pending and the threatened litigation the contesting parties thought it fit to net their disputes by a mutual settlement beneficial to all of them. Sundara Pandiya was the first to strike a barg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he properties shown as belonging to the said Kamuluammal Avargal. 16. This deed was presented for registration on 10th May, 1890. On the same day O. S. No. 16 of 1889 i.e. Kandasami's suit, was also compromised. Exhibit P. 18 contains the terms of that the compromise. The following are its important provisions :- (a) The zamindari shall be enjoyed by Kamuluammal till her lifetime and she shall have no right to mortgage those properties in any way prejudicial to the plaintiff. (b) Kandasami and his he heirs shall after the life-time of Kamuluammal enjoy the zamindari excepting Dombacheri village together with such rights if any as the first defendants kamuluammal may her acquired under the deed of release executed between her and Sundara Pandiya. (c) Boothipuram village and shall be given to the plaintiff by Kamuluammal so that she may enjoy it with absolute rights. The entire peishkush and the road cess for the entire zamindari inclusive of the said village shall be paid by Kamuluammal. (d) The one-fourth share in pannai lands situated on the irrigation areas of Bangaruswami tank and Marimoor tank shall be enjoyed by Kandaswami and his heirs with the powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o succeed to them. The suit was resisted by the two sisters on the plea that these lands were stridhanam properties of Kamulu and they as stridhanam heirs were entitled to them in preference to their brother. Kamaraja II contended that he was entitled to these lands and buildings as they formed an integral part of the zamindari and were treated as such by Kamulu. This suit was dismissed and the plea of the two sisters was upheld. On 9th June, 1934, both of them executed a deed of release in favour of Kamaraja II whereby they conceded his claim to the pannai lands and the buildings as being appurtenant to the zamindari in consideration of his agreeing to pay ₹ 300 per mensem for life to each of them. 19. On the death of Kamaraja II on the 16th February, 1941, as already stated the second branch of the family became extinct, and disputes arose in regard to the succession to the zamindari, pannai lands, buildings etc. and the village of Boothipuram. As above stated, the claimants to the zamindari are three in number, Rajaya of the third branch, Kulasekara of the fourth branch and Chinnathayi alias Veeralakshmi, the widow of the late zamindar. The District Court and on appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which she was allowed to retain the zamindari. This contention is contrary to the clear recitals of the compromise deed. Kamuluammal was a forceful personality and it seems clear that she agreed to accept the title of Kandasami as next entitled to the estate and to give up her contention based on the will because she was given the zamindari for her lifetime and these pannai lands and buildings absolutely. Kandasami in whom the inheritance had vested was competent, in view of the decision in Sartaj Kuari's case to alienate these lands in her favour and to vest her with the absolute interest in them. It has therefore been rightly held that the Kamulu became the absolute owner of the lands which in due course devolved on her grand-daughters and ceased to be part of the joint family estate. Moreover, it does not lie in the mouth of Sundara Pandiya's descendants to challenge Kamuluammal's absolute title to these lands while retaining absolute title in the village of Dombacheri which under the same arrangement Sundara Pandiya got absolutely with rights of alienation. It was conceded that to the family arrangement arrived at in the year 1890 and evidence by the statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ari retained its character of the joint family property in the hands of kamaraja II, then the question to decide is whether as a result of the arrangement made in 1890 Sundara Pandiya relinquished his right to succeed to the family zamindari on the failure of nearest male heirs of Kandasami. If such relinquishment on his part is held satisfactorily established, then Kulasekara of the fourth branch would be entitled to succeed to the zamindari; otherwise Rajaya of Sundara Pandiya's branch alone is entitled to it under the rule of succession applicable to the devolution of the zamindari. 25. The claim made by the widow that the zamindari became by the arrangement of 1890 the separate property of Kandasami was disallowed by the High Court on the short ground that the documents Exhibits P-17 and P-18 read along with the various statements made in 1889 cannot be read as changing the character of the estate from the that of an impartible estate belonging to the joint family to an estate owned by Kandasami in his individual right. In the view of the High Court the only change effected by the arrangement so far as the estate was concerned was to the defer the right of Kandasami to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also divided in a similar manner. This grandson then died leaving a son, who also died without any issue but leaving a widow. Her title to the zamindari was denied by the descendants of the four sons of the zamindar. It was held that the sanad amounted to an agreement by which the joint family was divided and that on the death of the last holder his widow was entitled to the zamindari. It was observed in this case that having partitioned the lands, parties to the sanad proceeded to partition the jewels and this circumstances was inconsistent with the supposition that the document was executed with the intention of the merely providing allotments in lieu of maintenance. It is clear from the facts of this case that family owned other coparcenary properties besides the zamindari and the zamindari in dispute fell to the lot of the grandson as his separate property. There were other materials in the case indicating that there was complete separation between the members of this family. 29. In the next case an impartible zamindari had devolved the eldest of three undivided Hindu brothers. He executed an instrument appointing his second brother to be zamindar. The instrument recited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enance. The grantee built a separate house, divided from his brother's by a wall, established therein a tulsi pinda and thakurbari, and lived there separately from his brother. He defrayed the marriage expenses of his daughter subsequently to the grant. Upon these facts it was held that there was complete separation between the brothers, and that the impartible estate consequently became separate property of the holder whose widow was entitled to succeed and have a widow's estate in the zamindari. It was observed that the evidence clearly proved that there had been completed separation between Thakur Ranjit Narayan Singh and his brother Bhupat Narayan Singh in worship, food and estate. In our opinion, the decision in this case must be limited to the facts therein disclosed and can have no general application to cases of impartible estates where the only right left to the junior members of the family is the right to take the estate by survivorship in case of failure of lineal heirs in the line of the last zamindari. The junior members can neither demand partition of the estate nor can they claim maintenance as of right except on the strength of custom, nor are they entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod there had been a complete separation in worship, food and social intercourse between the claimant's branch of the family and that of the deceased holder, and that upon the death of the holder the claimant had not disputed that the widow of the deceased was entitled to succeed. It was held that there was not to be implied from the circumstances stated above a renunciation of the right to succeed so as to terminate the joint status for the purposes of that right. 34. In Sri Raja Lakshmi Devi Garu v. Sri Raja Surya Narayana Dhatrazu Bahadur Garu, the last zamindar died without any issue in 1888, and when his widow was in possession, the suit was brought for possession by a male collateral descended from a great grandfather common to him and to the last zamindar. The plaintiff claimed to establish his right as a member of an undivided family holding joint property against the widow who alleged that her husband had been the sole proprietor. In proof of this she relied on certain arrangements as having constituted partition, viz., that in 1816 two brothers, then heirs, agreed that the elder should hold possession, and that the younger should accept a village, appropriated to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36. The evidence in the present case is trivial and inconclusive and from the documents above mentioned no intention can be deduced on the part of the junior members or on the part of any other member of the family of disrupting and dividing the family and renouncing their expectancy of succession. On the other hand, the statements made in 1889 and 1890 by the members of the family clearly indicate that none of them had any intention of giving up his rights of heirship to the zamindari. There was no change of this frame of mind at any later stage of the family arrangement. Sundara Pandiya on the 9th January, 1889, clearly stated that the wish of the family was that the widow should be in charge of the estate and after her the next heir should succeed and that it was Kandasami. Kandasami said, that he was the next heir, the family being undivided. In the compromise this statement was reiterated. Their intention was to preserve their rights to take the zamindari if the line of Kandasami became extinct. 37. Mr. Pathak then put his case from a different point of view. He urged that Kandasami had the power to alienate the zamindari or any part of it and by an act of alienation he c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter her death. 39. After Kandasami's death when the zamindari came by descent to Kamaraja II, he also followed in the footsteps of his ancestor. During the period of his stewardship of the estate he tried to implement it by recovering the pannai lands which under the compromising had gone out of the estate to Kamulu absolutely. He was successful in his efforts though as a result of the decision in the present case his labours in this direction have proved futile as the release deed has been held to be vitiated by fraud. 40. For the reasons given above we hold that there exist no satisfactory grounds for holding that the arrangement made in 1890 evidences a partition amongst the members of the joint family or proves an intention on the part of the junior members of the family to renounce their expectancy of succession by survivorship on failure of male lineal descendants in the second branch of the family. The question whether there was separation among the members of the family is primarily a question of fact and the courts below having held that it is not proved, there are no valid grounds for disturbing that finding. Chinnathayi's claim therefore to the zamindari m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnished by the considerations set out above. 42. The whole emphasis of Mr. Raghavan who represented Kulasekara was on the words of the deed contained in clause 5 set out above. Sundara Pandiya by this clause stipulated that hi will have no right to the property shown as belonging to the widow. Sundara Pandiya was then agreeing that the widow should retain the zamindari absolutely, his mind being affected by the will. Latter on by the compromise made in Kandasami's suit what had been given absolutely to the widow was converted into a life estate with the exception of the pannai lands and Kandasami was acknowledged as the rightful heir. The recitals in the release deed therefore have to be read in the light of the terms and conditions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the zamindari immediately as the senior most member of the family but that he did not renounce his contingent right of succeeding to it by survivorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those then put up and have to be limited to the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
