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TMI Blog1894 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... to recapitulate in this judgment. 3. Of the fourteen issues recorded for decision, the thirteenth and fourteenth relate merely to improvements and mesne profits. To the decision on the first three issues, no exception is taken at the hearing before us. The fourth, sixth and seventh issues relate to preliminary grounds of objection urged against the suit, whilst the other issues refer to the merits. 4. The first question for determination is that raised by the fourth issue, viz., whether the suit is barred by the Act of Limitations. The facts, from which it arises, are shortly these. At the commencement of the year 1866, and for some years before it, one Bhuloka Pandya Chokka Talavar was the Zamindar of Maniachi, and the properties now in dispute were then comprised in the zamindari. He died on the 14th January 1866, leaving him surviving seven widows and five minor sons as shown in the sub-joined pedigree: Bhuloka Pandya Chokka Talavar, Zamindar of Maniachi, who died in January, 1866. His seven wives. | ------------------------------------------------------------------------------- | | | | | | | No. 1 No. 2. No. 3 No. 4. No 5. No.6. No. 7. Kattama Rama Udayanna Rama Shanmu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mindari in this Court, as in the Court below, on his position as the eldest of the surviving brothers of the last zamindar, while the respondents' case is that the uterine brother, Sendura Pandyan, excludes him from succession. With reference to this contention, it was alleged for the appellant that Sendura relinquished his interest in the zamindari, if any in favour of the appellant by document C, which bears date the 15th August 1885. The plaint, which is dated the 9th June 1885, prayed for a decree (1) establishing appellant's right to the properties in dispute, cancelling the decree in Original Suit No. 14 of 1866 and the auction sale in its execution, and (2) awarding him possession of the properties mentioned in the plaint. It stated that the decree and the execution sale were vitiated by fraud, and that the circumstances constituting fraud came to appellant's knowledge only in March, 1885. The decree in Original Suit No. 14 of 1866 was passed on the 4th May 1867, and the sales in execution of it took place on the 11th and 13th August 1870, and were confirmed by the Civil Judge on the 14th September, 1870. The purchasers were placed in possession on 27th and 29th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orship or Archanai is performed in the Tiruchendur temple on appellant's Janma Nakshatram day or the day of his birth fixed with reference to the lunar asterism or mansion. According to respondents' eleventh witness it is clear that the appellant's Janma Nakshatram or the star, under which he was born, was the 'Satayam' or the 24th lunar mansion day in the month of Chittirai which corresponds to the 5th May 1861 according to the calendar. Respondents' witnesses are not connected with them. The Subordinate. Judge describes the evidence at length in paragraph 21 of his judgment and comes to the conclusion that appellant was born on the 5th May 1861; and after carefully considering it, we see no reason to disturb his finding. In the first place, respondents' eleventh witness is a disinterested witness. The fact deposed to by him is in the nature of circumstantial evidence. It is a fact which he was in a position to remember from the Archanai or special service being performed every year on the same lunar day of the same solar month. It is corroborated by the date of the Tiruchendur festival in the year 1861 with which, event the fourth witness connects appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct finding as to the date of appellant's birth. 14. With reference to the latter part of the sixth issue, it is argued by respondents' pleader that under the Indian Majority Act IX of 1875, Section 3, the appellant should be treated as having attained his majority on the completion of 21 years, only in case he had lawfully been under the jurisdiction of the, Court of Wards, and that he must otherwise be treated as having attained his majority on the completion of 18 years. We shall presently consider the question whether Sendura Pandyan excludes the appellant from succession and whether an uterine brother succeeds to an impartible estate in preference to a half-brother, though the latter is senior in years to the former. Assuming, for the purpose of dealing with the question of limitation and for that purpose only, that the appellant was not only the de facto but also the de jure zamindar, we see no reason to doubt the correctness of the Subordinate Judge's decision that appellant attained his majority on the completion of 21 years on; the 4th May 1882. 15. There are three more matters in connection with which the question of limitation has been considered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole period of three years from the date of his majority. But it does not warrant the inference that it gives three years in cases which are governed by Article 12. If the minor were an adult at the date of the sale which he seeks to set aside, he would have to sue within one year from the date of the confirmation of the sale; and on attaining his majority, he stands in the position of an adult, and there is no reason why he should have three years instead of one year from the date of majority. Section 7 ought to be read together with each article in the second schedule, and when the period prescribed by the latter extends to three years or more and expires within three years from the date of attainment of majority, the intention is that the late minor should have the full three years. But when the period of limitation prescribed by the schedule, as for instance by Article 12, is less than three years, and the minor has that period from the date of his majority, we see no warrant for holding that the intention was to enlarge the period of limitation prescribed by the schedule to three years. We are unable to adopt the view of the Subordinate Judge that the appellant had more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the surviving sons of Bhuloka Pandya Chokka Talavar. It is admitted that Subramanya Chokka Talavar was the eldest son of the previous Zamindar, and that he succeeded his father by right of primogeniture, no special custom being alleged by either party as controlling the right of primogeniture in case of disputed succession to the zamindari. The point for consideration is whether, under the Mitakshara law nearness of blood is a ground of preference as between brothers of the half and full blood in case of disputed succession to impartible coparcenary property. 22. The Subordinate Judge decides it in the affirmative, but in that opinion we are unable to concur. Apart from authority, we are of opinion that on general principles the question should be answered in the negative. The first of them is that a rule of decision in regard to succession to impartible property is to be found in the Mitakshara law applicable to partible property, subject to such modifications as naturally flow from the character of the property as an impartible estate. The second principle is that the only modification which impartibility suggests in regard to the right of succession is the existence of a spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle applies when the property is the coparcenary property, though impartible, belonging to a joint Hindu family consisting of the deceased zamindar and his brothers. Looking again to the Mitakshara law of succession as applied to partible coparcenary property, the right of survivorship is mentioned as a dominant right which controls the rule of succession applicable to separate property. In Chapter II, Section I, Sloka 20, of the Mitakshara, the commentator premises a case of competition between the coparceners and widows of a deceased person, and refers to the text of Narada 'let them allow a maintenance to his women for life,' and concludes that the widows are entitled only to maintenance, the coparceners being entitled to the property. It follows that in case of coparcenary property, the doctrine of survivorship furnishes an additional rule whereby the class of heirs has to be found. It is also a controlling or dominant right for the reason that, according to Hindu theory, coparcenary property belongs to the coparcenary family, that though coparceners are tenants in common, they have no specific property but only an interest which may ripen into specific property o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daughter and not by coparceners. The question now in dispute did not arise in that case, but there are observations made by the Privy Council which indicate, the principles that should guide our decision in this case. Their Lordships say there are two principles on which the rule of succession, according to the Hindu law, appears to depend. The first is that which determines the right to offer the funeral oblation and the degree in which the persons making the offering are supposed to minister to the spiritual benefit of lithe deceased; the second is the right of survivorship. It is generally intelligible that upon the principle of survivorship the right of the coparceners in an undivided estate should prevail. Their Lordships say further that in coparcenary property according to the principles of Hindu law, there is coparcenership between the different members of a united family and survivorship following upon it; for 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le by descent to the impartible estate, by analogy to general Hindu law. The Judicial Committee say further that by general Hindu law, the uterine brother would be the heir in preference to the half-brother, were it a disputed succession to divided property. 27. This limitation is also in accordance with the text of the Mitakshara in Chapter II, Section IV, slokas 5 and 6, and is an authority for the proposition that in case of disputed succession to impartible property, which was acquired by, or belonged exclusively to, the deceased zamindar, nearness of blood is a factor to be considered in determining the class of kindred from whom the single heir has to be selected. Respondents' pleader lays considerable stress on the passage in the judgment of the Privy Council which deals with the contention on behalf of the appellant in the Tipperah case, to the effect that the preference of the whole to the half-blood does not extend to a raj, and that, when the estate is ancestral and undivided, brothers of the whole and half-blood are on the same footing. Their Lordships observe as follows: When a raj is enjoyed and inherited by one sole member of a family, it would be to introduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngal, a brother of the whole blood succeeds in the case of an undivided immovable estate, in preference to a brother of the half-blood. The ratio decidendi is that the doctrine of survivorship has no operation under the Dayabhaga law either as part of the general scheme of inheritance or as an exception to it. 28. Again, the recognized foundation of the right of survivorship is the Smriti of Narada cited in Mitakshara, Chapter II, Section 1, verse 7; but Jimutavahana notices this Smriti in Chapter XI, Section 1, verse 48, of the Dayabhaga, and concludes after a consideration of the other Smritis, especially the Smriti of Vrihaspati, that Narada contemplated the case of wives of an inferior rank, who do not possess the status of a Patni or the lawful wife of approved rank. On the construction suggested by him in verse 54, there is no foundation in the Smriti law, on which the doctrine of survivorship can rest. As the Mitakshara, however, differs from the Dayabhaga, the decision in the Tipperah case, although it is in perfect accordance with the Dayabhaga law, has no application in the Mitakshara country. 29. It is further urged by the learned pleader for respondents that assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of survivorship, and there are not wanting in the admitted rules which govern the enjoyment of such property and the succession to it indici a of co-ownership and consequent survivorship. This case is an authority in the Presidency for the proposition that the very custom by which coparcenary property is rendered impartible suggests survivorship as a necessary incident of impartibility, and that it is not correct to say that there is no coparcenership in regard to such property, the difference being only in the form in which coparcenary exists in respect of partible and impartible property. 31. In this connection our attention is drawn to the decision of the Privy Council in Rani Sartaj Kuari Rani v. Deoraj Kuari L.R. 15 IndAp 51 This case modifies the opinion expressed in the last preceding case to this extent and no further, when the estate is governed by the Mitakshara law, and it is impartible by the usage and custom of family and descends according to the law of primogeniture on the male heirs of the original grantee, the estate is not inalienable except on proof of special custom. The case is, therefore, an authority for the proposition that inalienability is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, the zamindari had escheated to Government, which was free to deal with it as it chose. By a new sannad the Government granted it to Gouri Vallabha, conferring a legal title which none could dispute. But what was done in this case? After referring to the facts of that case their Lordships state: This account shows no legal forfeiture, no fresh grant by any person competent to grant a legal title. It only shows that on a dispute between Mallappa Dhora and his superior, another member of the family came in, and, with the strong hand and in concert with the superior, succeeded in ousting Mallappa Dhora and in assuming the position and right of the zamindar. This case is an authority for the position that forcible dispossession produces no change in the nature and tenure of the impartible property. 33. Another case is that of Maharani Hiranath Koer v. Baboo Ram Narayan Sing 9 B.L.R. 274 in which the Tipperah case was dissented from. 34. Two other cases were also referred to at the hearing--Ranganayakamma v. Ramaya Mayne 499 and the Padamathur case I.L.R. 1 Mad. 312 They follow the Sivaganga case. 35. The latest case is that of Raja Jogendra Bhupati Hurri Chundun Mahap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were their mothers, who were also defendants, described as the guardians of their minor sons. It appears from the decree in that suit that the first eleven defendants consisted of six widows and the five minor sons of the former zamindar, Buloka Pandya, including the plaintiff and his predecessor in title, the mother's name being entered first as that of a defendant and the minor's name being entered next as that of her minor son. It is not stated in terms that the mother of each minor was appointed or made a party as his guardian, ad litem; but it is clear that, in each case, the mother was her minor son's natural guardian and that the object in including both as defendants was presumably to make both parties to the suit, the mother as Buloka Pandya's widow and the minor son by his mother and natural guardian. It was Act VIII of 1859 that was in force when the suit was brought, and it contained no provisions as to appointment by the Court of guardians, ad litem, for minor defendants. According to the then practice of the Court, it was sufficient if the mother was made a party as guardian and permitted to act as such on his behalf. It is also in evidence that the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular minor on whose behalf the Court of Wards then managed the zamindari as their proper ward. 40. The second objection is that the mothers of the minors allowed the trial to proceed ex parte, and that summonses were not served upon them. As regards non-service of summonses the allegation was attempted to be supported by oral evidence which the Subordinate Judge has discredited. As to the weight due to the oral evidence on this point, we concur in his opinion. It is true that the copy of the judgment in Original Suit No. 14 of 1866 shows that the Collector alone defended the suit, but the circumstances of the case suggest the inference that the minors' mothers left the defence to be conducted by that officer acting under the direction of the Court of Wards, as he was more competent than themselves adequately to protect the minors' interests. We may here observe that the interests of the then de facto minor zamindar, who was the ward of the Court of Wards under Regulation V of 1804, were identical with those of his brothers so far as they related-to the subject-matter of that suit. 41. The third objection is that the admission by the Collector of the claim was an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree passed on instalment bonds to pay future instalments due on those bonds as they fell due. 43. Another objection taken to the finding on the eighth issue is that the decree was merely declaratory in so far as it related to the fourth, fifth and sixth instalments, and that the decree was nevertheless executed against the minors' estate. 44. It must be observed, however, that the decree was not declaratory but contained an order for payment as those instalments fell due, and, in fact, the sale now impugned by the appellant took place long after they had become overdue. In our opinion this objection is entitled to no weight. 45. Another objection is that the Collector ought to have objected to the execution of the decree on the ground mentioned in the last paragraph, when he represented the plaintiff's predecessor in title in execution proceedings. In fact the Collector did not then take the objection; but, if it had been taken, it would have been disallowed for the simple reason that on its true construction, the decree was not declaratory after the future instalments became due any more than a decree for payment of future maintenance at a fixed rate would be, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for the defendants was that the debt was incurred for purposes binding on the former zamindar, Buloka Pandya's family, and therefore on the plaintiff. The Subordinate Judge has stated the evidence on each side, and, after carefully considering it at length, has come to the finding that the debt was neither vicious nor immoral as alleged by the appellant, but was a debt contracted by a Hindu father for purposes binding on his family. In this opinion we entirely concur. The evidence for defendants clearly traces the nucleus of the decree-debt to debts contracted by appellant's father in 1845 and 1849 whilst the plaintiff was born only in 1861. Original Suit No. 1 of 1845 was brought by an illegitimate son of appellant's grandfather, and, to that suit, the grandfather and Buloka Pandya, appellant's father, were made parties. The object of that suit was to recover possession of a pannai land or home-farm on the ground that it had been sold to the then plaintiff by appellant's grandfather. Appellant's father resisted the claim, but the suit ended in a compromise, whereby it was agreed that appellant's grandfather should pay the then plaintiff ₹ 7,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific property. The insertion of general words moveable property in addition to the zamindari cannot defeat that intention which is the key to right construction. However, it is not necessary to determine this question for the purposes of the present appeal, as we concur in the opinion of the Subordinate Judge that, before the property in dispute was sold, it had been attached in execution of the decree. On the other hand, the appellant's contention that the decree-debt was immoral rests on mere oral evidence. The Subordinate Judge sets, out the evidence and considers it not trustworthy, and the reasons assigned by him support his conclusion. On reading the evidence, we do not see our way to coming to a different finding. Thus, on the one side there is unimpeachable documentary evidence, whilst on the other side there is only questionable, oral evidence in regard to transactions which took place more than forty years ago, the evidence being produced at a late stage of the final hearing and several of the witnesses being in a position to be influenced by a person in the appellant's position. We have, therefore, no hesitation in adopting the finding of the Subordinate Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 'we are divided' disclose an intention to regard the zamindari as appellant's exclusive property from the date of the document. 56. The respondents' contention is that appellant's claim, as based on Exhibit C, would be time-barred, and that the relinquishment is not available to appellant as an additional ground in support of his claim. It is argued that, though Sendura Pandyan, the next junior brother of the appellant and the eldest of the surviving brothers of the whole blood, might not be time-barred by reason of his having attained his majority within three years before he executed document C, yet the privilege conferred upon minors by Section 7 of the Limitation Act is personal to them, and does not extend to their adult transferees, and that the transfer of their right after a period of twelve years from the date on which the sale was confirmed and before the expiry of three years, a period which is allowed to them as a personal privilege, is not actionable if the transferee had attained his majority more than three years before suit. In support of this contention reliance is placed on Rudra Kant Surma Sircar v. Nobo Kishore Surma Biswas I.L.R. 9 Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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