9911796707
TMI Blog1927 (12) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... would appear to be in entire accordance with what has often been laid down by this Board, that these impartible estates are the creatures of custom, and with the decision in Katama Natchiar v. The Rajah of Shivagunga (the Shivagwnga case (1863) 9 M.I.A. 539 that where no special custom is proved, the customary law of succession is to be found in the Mitakshara, which is the general customary law in this part of India, with Much qualifications only as flow from the impartible nature of the subject, and that consequently, in applying this law the impartible estate, though in the sole enjoyment of the holder, is to be regarded for the purposes of succession as the joint property of the holder and his family and as passing by survivorship, unless it is shown to be the separate property of the holder or his branch, in which case it is descendible according to the roles of the Mitakshara as to separate property. 4. In this case the first plaintiff, who is the mother of the last holder, claims the estate as the nearest heir to his separate property, whereas the defendant, who is a distant male agnate, claims to succeed to it as joint family property. 5. The plaint included an alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant was accordingly issued to the Poiigar. 10. The following pedigree taken from the judgment of Kamesatu J., in the High Court, shows the descent of the family from the common ancestor, the Poiigar Lakshmanappa Jadaya Gounder, who died in 1822. 11. The letters R. 1, R. 2 show the persons entered under the heading Surviving heirs of the present incumbent in the order mentioned in the Inam Register already mentioned. 12. Lakshinanappa 1, who died in 1822, was succeeded by his second son Annadana I, described as the 30th Jaghirdar, who died in 1860. The circumstances under which his elder brother Ram-appa was set aside were investigated in the suit brought in 1875 by Annadana's grandson Annadana IT. the 2nd Jaghirdar to recover the estate from his cousin Lakshmanappa who was the grandson of Ramappa and grandfather of the first defendant here, and had taken possession of the estate during his minority and claimed to be rightful heir. 13. In that case the High Court in Keg, Appeal 116 of 1876, on appeal from the judgment of the Subordinate Judge at Cuddaloro in 0. S. No. 7 of 1875, were inclined to think that in 1820, two years before his death, Lakshmanappa I ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranch of the family, took possession of the estate claiming to have succeeded by survivorship, and was subsequently sued by Narayanappa's mother, Konarnmal, the present plaintiff', who alleged that the estate was the separate property of her deceased son and that she was entitled to succeed to it. 16. The onus of proving that the estate bad become the separate property of the junior breach was on the plaintiff, who based the claim in the plaint on the following grounds : (1) That Annadana (the 30th Jaghirdar) and his descendants had all along owned and held the estate as their separate and absolute property; (2) that they had also acquired a title by adverse possession; (3) that the first defendant's claim was barred by res judicata by reason of the judgments and decrees of the Small Cause Court at Cuddalore in 1875, and of the High Court of Madras in 1976; (4) that the late Jaghirdar and his; ancestors were separated from Ramappa and his descendant, and in any case after the proceedings of 1876 and by their subsequent conduct there had been a complete separation between the two branches; and (5) that the late Jaghirdar and his ancestors had been holding the estate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the estate though impartible must still be regarded as joint family property for the purposes of succession had been shaken by the decisions of the Board in Sartaj Kuari v. Deuraj Kuari I.L.R. (1888) All 272, p.c. and Sri Raja Rao Venkaia Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards and Venkata Kumari Mahipati Surya Rao and Rama Rao v. Raja of Pittapur (1899) L.R. 45 IndAp 148, s.c. 20 Bom. L.R. 1056 in which it was held that the holder for the time being had as unrestricted right of alienation inter vivos or by will and that the junior members of the family had no right to maintenance out of the estate not based on 1827 custom. 20. Further, in the Courts below the appellant relied on two decisions of this Board not long before Lord Dunediu's judgment, Thakurani Tar a Kumari v. Ghaturbhuj Narayan Singh and Sir John Rajkumar Babu Bishun Prakash Narayan Singh v. Maha-rani JanJei Koer (the Bettiah Raj case (1920) 24 C.W.N. 857, p.c. In the former case it was held that an impartible estate had become the separate property of one branch of the family by reason of a number of facts showing that the two branches had become separate. This case cannot now, in their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the test applied was whether the facts showed a clear intention to renounce or to surrender all interest in the impartible estate. 25. Thus in Ghowdhry Ghintamun Singh v. Mussamut Nowlukho Konwri where there had been to some extent a separation in the family, it was held that the question was, whether the plaintiff's father and his branch had waived the right of succession and had impressed upon the taluqua the character of separate property. 26. Again, in Periasami v. Periasaini, it was held on the facts that Muthu Vaduganatha Tevar, conceiving that he was entitled to succeed to the important zamindari of Shivagunga, had renounced for himself and his of all interest in the small and dependent Palaiyam of Padamatur, thus, in the words of their Lordships in the second Naraganti Achammagaru v. Venkatachalapati Nayanivaru I.L.R. (1881) Mad. 250 manifesting his intention to separate himself and his descendants completely from the Palayam . On the other hand in Stree Rajah Yanumula Venhaymah v. Stree Rajah Yanumula Boochia Vanhondora (1870) 13 M.I.A. 333it was held that when Bapamdora, a junior member of the family, drove out the fifth Mansabdar, who had quarreled with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso that the defendant's branch had become divided inter se, and that, in either event, the defendant's branch had lost their right of succession to the estate. Now once it is established-as it must now be taken to be-that for the purposes of succession an impartible estate may be joint family property, it is difficult to see upon what, principle the fact that the members of the joint family or of any branch of the family have exercised their right of partition over their partible property should be held to divest them of their interest in the impartible estate over which they have no right of partition, It certainly cannot be put upon the ground of surrender or renunciatic o, for there is nothing in the fact of these partitions of their partible property to suggest any intention of renouncing their rights of succession to the impartible estate, nor do they receive any consideration for such renunciation. In Malabar, where all joint property is impartible, it is a matter of everyday occurrence for a female member of the tarwad and her descendants to acquire and hold property as a tahvizi or aub-tarwad without their rights of property in the 1927 main tarwad being in any way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindu Judge necessarily of great experience in such matters, has pointed out that in Southern India evidence as to separate food and the absence of joint worship is of very little weight. As regards worship, there is practically no joint family worship, and the evidence which was adduced to whether or not the defendant's branch had any part assignee to them in the animal festival of the local temple in which the Jaghirdar took a prominent part had no bearing on the present question. Similarly, as regards food, Ramesam J. has pointed out that it is not the practice for the junior branches of the family to live with the owner of an impartible estate, and that no inference as to separation can be drawn from separate living. In the present case, what happened was that the members of the first defendant's branch continued to live in the old family residence on Tiruppadi Hill in houses closely adjoining the so-called palace of the Jaghirdar, while the Jaghirdar ceased to reside in the hills and acquired a new residence more to his taste in the plains. The position of the junior members was in no way altered; they went on living as they did before, and continued to enjoy the priv ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
