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TMI Blog1863 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... named Boothaka Natchiar, the third had two daughters, Kota Natchiar and Katima Natchiar, the present Appellant; and the fourth was childless. The three surviving widows were Anga Moottoo Natchiar, Purvata Natchiar, and Moottoo Verey Natchiar. Of these Purvata Natchiar was enceinte at the time of her husband's death, and afterwards gave birth to a daughter named Sowmia Natchiar. The two others were childless. 3. Oya Taver, the brother, left three sons, of whom the eldest was named Moottoo Vadooga. 4. The Zemindary is admitted to be in the nature of a Principality--impartible, and capable of enjoyment by only one member of the family at a time. But whatever suggestions of a special custom of descent may heretofore have been made (and there are traces of such in the proceedings), the rule of succession to it is now admitted to be that of the general Hindoo law prevalent in that part of India, with such qualifications only as flow from the impartible character of the subject. 5. Hence if the Zemindar, at the time of his death, and his nephews were members of an undivided Hindoo family, and the Zemindary, though impartible, was part of the common family property, one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Its history may be conveniently divided into three periods: the first beginning with the institution of suit, No. 4, of 1832, and ending with the Order of the Queen in Council in 1844; the second beginning from the date of that Order, and ending with the death of the widow, Anga Mootoo Natchiar, on the 23rd of June, 1850; and the third being that which covers the proceedings which have been had since Anga Moottoo Natchiar died. 8. The suit, No. 4 of 1832, was brought by Velli Natchiar, the daughter of Gowery Vellabha Taver by his first wife, on behalf of her infant son, Moottoo Vadooga. It claimed the Zemindary for the infant by virtue of an Arze said to have been sent by the Collector to Gowery Vallabha Taver in 1822, according to which the succession would be to the son of a daughter in preference to his widows, and a fortiori in preference to his brother's descendants. The defence to this suit insisted that the Zemindary had been granted to Gowery Vallaba Taver solely in consequence of his relationship to the former Zemindars, and was, therefore, to be treated as part of the undivided family estate, and, as such, descendible to the eldest of the male co-parceners in pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r decrees of dismissal, but it seems probable that they were heard and disposed of together. It also appears that, although there was not in any of them a distinct issue, whether Gowery Vallabha Taver and his nephews were or were not an undivided Hindoo family, some evidence was given in the suit, No. 4 of 1832, to show that he and his brother were separate in estate. There was an appeal in each of the three suits, and these were heard together, and disposed of by the decree of the Sudder Court. That decree dismissed No. 4 of 1832, on the ground that the Plaintiff had failed to prove his alleged adoption by Gowery Vallabha Taver, and it dismissed No. 4 of 1832 on the ground that the succession to the Zemindary was governed by the general Hindoo law, and not by any particular or customary canon of descent; so that, if descendible as separate estate, it would go to the widows of Gowery Vallabha Taver in preference of a grandson by a daughter. In the suit, No. 3, of 1832, it was decided, first, that as a matter of fact the Zemindary was the self-acquired and separate property of Gowery Vallabha Taver: secondly, that according to the opinion of the Pundits whom it had consulted, the ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty as early as the year 1792. The Plaintiff then excuses her omission to plead this fact in the previous suit by saying that she had been advised it was only necessary for her to show that her husband had been adopted by Velu Natchiar, and that the Zemindary was his self-acquisition. She then proceeds to allege, that on the death of Velu Natchiar, he actually became Zemindar until he was dispossessed by the usurpers ; on whose defeat and destruction by the East India Company, he was again put into possession under their grant. She also in this suit makes the alternative case, that even if no partition of their ancestral property took place between Gowery Vallabha Taver and his brother Oya Taver, she, as the eldest widow, was entitled to the Zemindary, as a separate acquisition, in preference to that brother's descendants, and pleads the decision, in what is called the Sandayar case, to prove that such is the Hindoo law, and that the opinion given in the former case by the Pundits to the contrary was erroneous. 14. In his answer, the first and principal Defendant recapitulated the several fasts relied upon by Bodha Gooroo in the former suit as constituting his title. He i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The first consisted of Boothaka Natchiar, the daughter of Gowery Vallabha Taver by his second wife, and Kota Natchiar and the present Appellant, his daughters by his third wife. They claimed as the rightful heirs of the Zemindary, if it passed as separate property, next in succession to the widow, Anga Mootoo Natchiar ; but considering its impartible nature, they expressed their willingness that it should be enjoyed first by Boothaka Natchiar for her life, next by Kota Natchiar for her life, and lastly by the Appellant. They treated Sowmia Natchiar, the daughter by the sixth wife, as excluded from the succession by reason of her marriage with Bodha Gooroo, and of her being then a childless widow. 18. Sowmia Natchiar, however, came forward by a separate petition, claiming to be heiress both to Anga Mootoo Natchiar and the Zemindary, by virtue of an instrument alleged to have been executed by Anga Mootoo Natchiar in her lifetime. 19. A third claimant was Mootoo Vadooga, the Plaintiff in the dismissed suit of 1832. His contention was, that though the decree in that suit may have been right in preferring to his claim that of Anga Mootoo Natchiar, his title as grandson was nevert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title with them in a new suit. The Court, however, by its proceeding of the 16th of September, 1852, adhered to its Order, giving at the same time a not very intelligible explanation of it. 26. Of the three daughters of Gowery Vallabha Taver who joined in the first of the above-mentioned applications to the Sudder Court, the Appellant alone brought a fresh suit. The plaint was not filed until the 5th of December, 1856, but there seem to have been various intermediate proceedings before both the Zillah and Sudder Courts. These are referred to in the Appellant's petition of appeal, but are nowhere stated in detail. Her plaint stated, that her father and his brother, Oya Taver, were divided in estate prior to 1801, and were then living separately ; that the Zemindary was granted exclusively to the former, and was, therefore, his self-acquisition, and enjoyed by him in exclusion of his brother. 27. The Appellant's title in succession to Anga Mootoo Natchiar is thus stated :-- The Zemindary, which is the self-acquisition of the Plaintiff's father after his division with Oya Taver, belongs on the death of his widow, Anga Mootoo Natchiar, to his second daughter, the Pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant's claim. On the 3rd of March, 1860, the Sudder Court refused to give the Appellant leave to appeal to Her Majesty in Council; but special leave was afterwards given on the recommendation of this Committee. 31. The present appeal is against the decree of the Sudder Court of the 5th of November, 1859, and its Order of the 3rd of March, 1860, and the decree of the 25th of August, 1859. It is also against the Order of the Sudder Court of 1852, and the decree of the Civil Court of Madura of the 27th of December, 1847. If, therefore, the latter decree is in truth a bar to the Appellant's obtaining effectual relief in her original suit, the appeal seeks by re-opening that decree to remove the bar. 32. And here, before going further, their Lordships deem it right to remark shortly upon the extraordinary doctrine touching this decree which was propounded by the Zillah Judge when dismissing the suit of 1856; because if unnoticed here, as it seems to have been unnoticed by the Sudder Court, it may find acceptance with other unprofessional Judges, and embarrass the course of justice in India. Their Lordships would otherwise think it unnecessary to observe that a judgment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the Zillah Court a declaration that she had established her title to stand in the place of Anga Mootoo Natchiar, and carry on the former suit. Whether the procedure of the Courts of the East India Company admitted of such a suit (and no precedent of one has been produced), their Lordships are not prepared to say. But they have a very strong and clear opinion that such was not the nature of the suit which the Sudder Court had in its contemplation when it made its Order of 1852. The omission to reserve the hearing of this appeal until the determination of the new suit; its removal from the file, which seems to be tantamount to its dismissal for want of prosecution, and has been so treated in these proceedings; the contention of the Respondent himself in his counter-petitions filed in opposition to the first applications for leave to prosecute the appeal all point to the conclusion that the new and original suit intended was one in which the whole title of the claimants should be again pleaded and litigated. 35. The subsequent and obscure Order of the 16th of September, 1852, is hardly inconsistent with this, though it seem to contemplate that the decree of 1847 might prove an e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Court to hear and determine the appeal against the decree of 1847 ; that it cannot itself deal with the merits of a decree of the Civil Court, until they have been determined by the appellate Court. Their Lordships, however, are not of that opinion. The appeal was ripe for hearing by the Sudder Court. Their Lordships have before them all the materials for a decision upon the merits, which have been fully argued before them. They conceive, therefore, that they are not bound to yield to this technical objection. On the contrary, they think that it is competent to them to advise Her Majesty to make the Order which the Sudder Court ought to have made in 1852, and that it is their duty to do so. 39. The substantial contest between the Appellant and the Respondent is, as it was between Anga Mootoo Natchiar and the Respondent's predecessors, whether the Zemindary ought to have descended in the male and collateral line; and the determination of this issue depends on the answers to be given to one or more of the following questions:-- First. Were Gowery Vallabha Taver and his brother, Oya Taver, undivided in estate, or had a partition taken place between them. 40. Second. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamine those opinions and authorities; but before doing so, it will be well to consider more fully the law of inheritance as it prevails at Madras and throughout the southern parts of India, and the principles on which it rests and by which it is governed. The law which governs questions of inheritance in these parts of India is to be found in the Mitacshara, and in ch. II., sec. 1, of that work the right of widows to inherit in default of male issue is fully considered and discussed. 44. The Mitacshara purports to be a commentary upon the earlier institutes of Yajnyawalcya ; and the section in question begins by citing a text from that work, which affirms in general terms the right of the widow to inherit on the failure of male issue. But then the author of the Mitacshara refers to various authorities which are apparently in conflict with the doctrines of Yajnyawalcya, and, after reviewing those authorities, seeks to reconcile them by coming to the conclusion that a wedded wife, being chaste, takes the whole estate of a man, who, being separated from his co-heirs, and not subsequently re-united with them, dies leaving no male issue. This text, it is true, taken by itself, doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty belonging to a member of a united Hindoo family, which descends in a course different from that of the descent of a share of the property held in union ; but such a proposition is new, unsupported by authority, and at variance with principle. That two courses of descent may obtain on a part division of joint property, is apparent from a passage in W.H. Macnaghten's Hindu Law, title Partition, Vol. I, p. 53, where it is said as follows : According to the more correct opinion, where there is an undivided residue, it is not subject to the ordinary rules of partition of joint property; in other words, if at a general partition any part of the property was left joint, the widow of a deceased brother will not participate, notwithstanding the separation, but such undivided residue will go exclusively to the brother. 46. Again, it is not pretended that on the death of the acquirer of separate property, the separately acquired property falls into the common stock, and passes like ancestral property. On the contrary, it is admitted that if the acquirer leaves male issue, it will descend as separate property to that issue down to the third generation. Although, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not extend to her husband's share in an undivided estate. For it is upon this principle that she is preferred to his divided brothers in the succession to a separate estate. But it is perfectly intelligible that upon the principle of survivorship the right of the co-parceners in an undivided estate should override the widow's right of succession, whether based upon the spiritual doctrine, or upon the doctrine of survivorship. It is, therefore, on the principle of survivorship that the qualification of the widow's right established by the Mitacshara, whatever be its extent, must be taken to depend. If this be so, we can hardly, in a doubtful case, and in the absence of positive authority, extend the rule beyond the reasons for it. According to the principles of Hindoo law, there is co-parcenaryship between the different members of a united family, and survivorship following upon it. There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession. But the law of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1837. 54. On examining the reasons on which the Pandits rest their opinions, it is to be observed that they proceed upon the assumption that the texts cited by them apply to the case which they were called upon to consider. They seem to have done so, both as to the passages cited from Vrihaspati and as to the text in the Mitacshara to which they refer ; but they leave untouched the question which they ought to have considered, whether these authorities do or do not affect this particular case. What we have already said as to the text from the Mitacshara, and what we shall presently say as to the passages from Vrihaspati is, we think, a sufficient answer to this part of the reasons on which the Pundits found their opinion. Then, again, they point to the distinction between obstructed and non-obstructed heritage ; and because the widow's right is not mentioned as obstructing the heritage, they infer that she cannot be entitled. 55. But the whole of this last argument seems to be founded on the passages in the Mitacshara contained in clauses 2 and 3 of section 1, chapter 1 ; and these passages, when examined, clearly appear to be mere definitions of obstructed and non-ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me entitled to it, and that the Court followed that opinion. The Pundits in the present case, attempt to reconcile the conclusions at which they have arrived with the opinion given by the Pundits in the Sandayar case, by assuming that the Pundits in that case proceeded upon an idea that the descendants of the common ancestor had been separated, but we see no foundation whatever for that assumption. On the contrary, the facts of the case seem to us to negative it. If, indeed there had been any such separation, we do not see how there could have been any question as to the rights of the widows. 57. The case, therefore, stands thus upon the authorities. On the one hand, we have the opinion of the Pundits in this case, which seem never to have been acted upon by any final decree. On the other hand we have the decision in the Sandayar case, and the other authorities cited for the Appellant at the Bar, particularly the passage from Menu, in Sir William Jones's paper, given at Strange's Hindu Law, Vol. II., p. 250 [2nd Edit.], and the opinion of the Pundit, Kistnamachary. (2 Strange's Hindu Law, p. 231), the latter and material portion of which is not open to the object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusion at which we have arrived. We shall, therefore, humbly recommend Her Majesty to reverse the decrees and orders complained of by this appeal; to declare that the suit of 1856, which appears to us to have resulted from erroneous directions given by the Sudder Court, ought to have been and ought to be dismissed; and in the suit of 1845 to declare that Sowmia Natahiar and Mootoo Vadooga were not, nor was either of them, but that the Appellant and her sisters were, as against the Respondent, entitled to prosecute the appeal, and to recover the Zemindary--this declaration to be without prejudice to the rights of the Appellant and her sisters inter se ; and, further, to declare that an account ought to have been and ought to be directed of the rents and profits of the Zemindary received by the Respondent, or by his order, or for his use, since the death of Anga Mootoo Natchiar, with directions for payment to the parties entitled of what should be found due upon the account; and also to declare that the Zemindary ought at once to be put into the hands of the Collector, or of a Receiver to be appointed by the Court, with liberty to the Appellant and her sisters, or any of ..... 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