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TMI Blog1868 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... r upon a point of law or procedure. 2. The issues in the cause were, first, whether the plaintiff's mother was in the exclusive and permanent keeping of the former zemindar of Yettiapooram as his mistress; and, secondly, whether or not the plaintiff was the illegitimate issue of the said zemindar by that woman, and, as such, entitled to maintenance. 3. The Principal Sudder Ameen held that the plaintiff (the respondent) had failed to prove his title, and dismissed the suit with costs. The Civil Judge, on appeal, by his decree of the 31st of March 1864, determined both the above issues in the respondent's favour, declared him entitled to maintenance at the rate of ₹ 2,500 per annum, and decreed that this amount should be paid annually by the appellant from the villages forming the private property of the present zemindar's (the appellant's) family. This decree was brought by special appeal upon grounds, some of which will be hereafter considered before the High Court of Madras, which, on the 3rd of January 1865, dismissed that appeal; and on the 27th of March in the same year, rejected an application for review of judgment with costs. The appellant havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the abstraction of jewels of considerable value. This charge ended in the razinama, or instrument of compromise, and the Magistrate's order thereon, both bearing date the 6th of November 1854. In this razinama, the respondent is described as the son of the late zemindar of Yettiapooram, and in the body of the instrument Venkataswara is spoken of as the paternal junior uncle of the complainant; and in the Magistrate's order the fact of the complainant being the natural son of the first defendant's elder brother is expressly assigned as a reason for admitting the compromise. 7. Three years after this, and in November 1857, the respondent commenced a suit for the recovery of the property which was the subject of the Porappu grant of the 25th December 1840, from which, with his mother, he had been ejected by Venkataswara. In his plaint he described himself as the son of Kumara, the late zemindar of Yettiapooram. The answer of the zemindar impeached the validity of the grant by his predecessor of a village forming part of the zamindari. The reply of the respondent, on this point, was in effect that his mother being of parallel grade with the wife of his father, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the illegitimate son of Kumara was certainly not very strong on either side. But if the case of the appellant were true, we should have expected that he, a powerful zemindar, in possession of the estate, with all the family records, and influencing the family dependents, would have been able to produce better evidence in support of his case than that which he has produced. The testimony of the Brahmins and women attached to the Pagoda seems to their Lordships to be especially unworthy of credit. It has been argued that the non-mention of the respondent in the Porappu grant of the 25th of December 1840, affords an inference that he was not the son of the zemindar, nor, at that time, so recognized by him. This may be true if it be assumed that the child was then in existence; whilst, on the other hand, the mere fact that the respondent is not mentioned in the deed, taken by itself, might afford an inference in support of the theory, that he was not then born. But if it be assumed that he was, as the appellant alleges, then in existence, and known not to be the child of the zemindar, it is highly improbable that the deed should have provided for her male issue generally without at le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (the present respondent) by the defendant (the present appellant) from the villages forming the private property of the present zemindar's (the appellant's) family. The first ground of appeal insisted upon by the Counsel for the appellant, on the special appeal to the High Court of Madras, is stated to have been that there was no appearance of any other property than that of the zamindari, and the fastening of a life-rent on that was illegal. 12. The High Court has sought to dispose of this objection by saying, the fact that the judgment of the Civil Judge indicates the possession of private property by the zemindar in possession, who has inherited the whole property of the plaintiff's father, renders this objection, even if tenable, wholly inapplicable. And it proceeds to remark that the question, whether maintenance in such a case could be charged on a zamindari, was still an open one. 13. The objection involved two distinct propositions, viz.:--1st, that there was no proof of property other than the zamindari; and, 2ndly, that the maintenance could not be charged on the zamindari. And the High Court has avoided the decision of the latter question by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich it can be charged. If that Court shall find that it can be properly charged on the income of the zamindari, their Lordships are of opinion that the amount awarded by the Zilla Judge, having regard to the respondent's status, is reasonable and ought to be decreed. But if it cannot be so charged, then, in the absence of information as to the other property on which it may be chargeable, their Lordships cannot pronounce an opinion as to the reasonableness of its amount, and they must leave that question also to be determined by the High Court on further enquiry. They trust, however, that the respondent's title to maintenance being now conclusively ascertained, the parties will be wise enough to settle the questions that remain open by private arrangements and without further litigation. The order which their Lordships will humbly recommend Her Majesty to make is, to reverse the decree of the Zilla Court of the 31st March 1864, and the decree of the High Court of the 31st March 1865, and in lieu thereof to declare that the respondent is the illegitimate son of the former zemindar, Kumara Naiken, and as such is entitled to maintenance: and to remit the cause to the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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