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Re:
Hindu Undivided Family Cases in the Privy Council on Appeal
from the East Indies, 1863, p. 543 Katama
Natchiar, Appellant, and Srimut
Rajah Mootoo Vijaya Raganadha
Bodha Gooroo Sawmy Periya
Odaya Taver, Respondent.* [FN* Present-. Members of
the Judicial Committee.--The Right Hon. the Lord Justice Knight Bruce, the.
Right Hon. Sir Edward Ryan, and the Right Hon. the Lord Justice Turner. Assessors,--The Right Hon. Sir
Lawrence Peel, and the Right Hon. Sir James W. Colvile.] On appeal from the Sudder Dewanny
Adawlut at
Madras Hindu Law--Impartible
Estate-Incidents of and succession to-Joint family property and separate
property-Tests to determine--Distinction between-Survivorship--Foundation. of
right of--Grant to one member of family--If separate or joint family
property--Partitioned property--Nature of--Widow's estate--Nature of -Decree
against widow--If res Judicata against reversioner. The Zemindary of Shivaganga in Madras is in the nature of
Principality, impartible, and capable of enjoyment by only one member of the
family at a time. By the law of inheritance
prevailing in Madras and throughout the southern parts of India, separate
acquired estate descends to a widow, in default of male issue of the deceased
husband. The interest of a Hindoo widow
so succeeding to her husband's estate is similar to that of a tenant in tail by
the English law, as representing the inheritance. In a united Hindoo family
where there is ancestral property, and one of the members of the family
acquires separate estate, on the death of that member such separate acquired
estate does not fall into the common stock, but descends to the male issue, if
any, of the acquirer, or in default, to his daughters, who, while they take
their father's share in the ancestral property, subject to all the rights of
co-parceners, inherit the self-acquired estate free from such rights. Where property belonging
in common to a united Hindoo family has [*544] ---------- In this case the appeal was brought
from a decree of the Civil Court of Madura, dated the 27th of December, 1847, by which the
Respondent's father, Gowery Taver, the son of Oya Taver, was held entitled to
the Zemindary of Shivagunga, as heir to the Appellant's [*544] ---------- been divided, the share of a
deceased member of the family goes in the general course of descent of separate
acquired property; but if there is a co-partnership between the different
members of the united family survivorship follows. Upon the principle of survivorship,
the right of the co-partners in the undivided estate overrides the widow's
right of succession; but with respect to self-acquired property of a member of
the united family, the other members of the family have neither community of
interest, nor unity of possession, therefore, the foundation of the right to
take by survivorship fails. A decree in a suit by A. against B,, claiming as widow, to
succeed to her husband's estate, in preference to B., his nephew, on the
ground of the family being divided, held not to operate a res judicata. or capable of being
pleaded in bar to a suit by C., a daughter, claiming to succeed to the family
being divided, held not to operate as res judicata, or capable of
self-acquired by her father. Such judgment, though viewed otherwise by the
Court below, determines only an issue raised concerning a particular person,
and is not a judgment in rem, but simply a judgment inter partes. ---------- father, Gowery Vallabha Taver, in preference to Anga
Moottoo Natchiar, the surviving widow of the latter, on the ground that Appellant's
father and his elder brother, Oya Taver, were undivided brothers. The appeal
also embraced the decrees of the Sudder Adawlut Court at Madras, dated the 19th of April, 1852, the 5th of November, 1859, the 3rd of March.
1860, and the decree of the Civil Court of Madura of the 25th of August, 1859, in which it was
held that the Appellant, claiming as heir in remainder after the death of the
surviving widow, Anga Moottoo Natchiar, was not entitled either to appeal
from the decree of the 27th of December, 1847, or to prosecute a new suit to
recover the Zemindary. The property claimed comprised, the Zemindary of Shivagunga, a Zemindary of very great value,
situate in the District of Madura in the Presidency of Madras, together with other property
and mesne profits to a very large amount. The circumstances of the case, the
history of the Zemindary of Shivagunga, and of the extensive litigation
respecting the succession, were as follow:-- The Zemindary of Shivagunga was created by [*545] Saadut Ally Khan, Nabob of the Carnatic, in the year 1730, and
it was given as an hereditary fief by him to Shasavarna Odkya Taver, of the family of Nalcooty, of the Marawa caste, in reward for his
military services. Shasavarna was on his death succeeded by his only son, Vadooganada, who was killed in
battle. Vadooganada had an infant daughter by his wife, Ranee Velu, but no other child. It
appeared that two persons named Vella Murdoo and Chinna Murdoo then usurped the actual
government of the Zemindary, and ultimately wrested from the Nabob of the Carnatic his acquiescence in the
nominal tenure of the Zemindarship by Ranee Velu. Velu gave her daughter by Vadooganada in marriage to one Vengam
Odaya Taver. The daughter died in giving birth to her first child, and the child
survived. its mother but a short period. Both died in the lifetime of the Ranee
Velu,
who was thus left issueless. It also appeared that the Appellant's father lived
at Shivaguga with the Ranee, who, it was alleged, had adopted him. The parties who then
appeared to be entitled to the Zemindary were two brothers, Oya Taver and Gowery Vailabha
Taver,
collateral descendants from the progenitors of Shasavarna. Gowery Vallabha
Taver was
at this time about twenty-nine years of age. Oya Taver was his senior in years,
but sickly and infirm. The two brothers were the nearest relations of Vadooganada, and also of Shasavarna.
Vella. Murdoo and Chinna Murdoo, on the death of Ranee Velu, expelled Oya Taver and Gowery Vallabha
Taver from the Zemindary, and joined a rebellion against the Government. This
rebellion was put down by the East India Company. By the Treaty of the 12th of July,
1792, all sovereign power over the Poligar countries, including the Zemindary of Shivagunga, was transferred in
perpetuity by the then Nabob of the Carnatic to the East [*546] By a proclamation of Lord Clive,
dated the 6th of July, 1801, the Government transferred the Zemindary, which, it appeared, was
treated by the Government as an escheat for want of lineal heirs, to the Appellant's
father, Gowery Vallabha Taver, otherwise called Permettoor Worria Taver, or Woya Taver, who was collaterally
descended from the progenitors of the first Zemindar, and appointed him Zemindar of Shivagunga. By a Sunnudi Milkeat Istimrar, or deed of permanent
settlement, dated the 22nd of April, 1803, the Zerniudary was confirmed to the
Appellant's father, to hold in perpetuity, with power to transfer the same by
sale or gift, on payment to the Government of a permanent annual jumma. From the time of his
investiture in 1801, until his death in 1829, Appellant's father continued the
sole Zemindar. The principal questions involved in
the appeal were, first, whether the. Appellant's father and his brother, Oya
Taver,
were divided brothers; and, secondly, if the Zemindary was the self-acquired
estate of the Appellant's father. It was alleged by the present Appellant that
her father, and his elder brother, Oya Taver, had divided their ancestral and
other property at Padanattoor and elsewhere, which they held as principal flyots
under the former Zemindar of Shivagunga. .This division it was said was
effected by deeds executed in the year 1792, after which Appellant's father
remained with Ranee Velu at Shivagunga, which was some distance from Padarnattoor, where Oya Taver continued to reside, Padaniattoor having fallen to his.
share on the division. It appeared that by a Moochilka, or lease, dated the
17th of July, 1803, the elder brother, Oya Taver, leased from the Appellant's father
eight villages, part of the Zemindary, in permanent lease, at a fixed
teerva (rent) of [*547] Pons 3,157. These villages.
were held under the Moochilka by Oya Taver until his death on the 17th of.
April, 1815, he, having paid the teerva to his brother, with the exception of
some arrears due at his death. By a Moochilka, dated the 24th of July, 1815, Moottoo
Vadooga Taver, also called Woya Paver, the eldest son of. Oya Taver, rented the same
villages at the same rent a similar manner from the Zernmndar, at . the same
time, binding himself to pay the, arrears due from. his father. In the year
1820, Moottoo Vadooqa made claim to the eight villages as Zemmudar of a separate Paliaput, at Padarnattoor and. created some
disturbance, refusing to pay the rent to his uncle, the Appellant's father. This gave rise to a suit being
instituted on the 1st of March, 1823, by the Appellant's father against Monttoo
Vadooga and
his two brothers, Gowery
Vallabha
and Bodha Gooroo Swamy Taver, the three sons of Oya Taver, to recover the eight
villages s forfeited for non-payment of teerva, founding his right upon the gift
of the Zemindary to him by the Government in 1801, and the two Moochilkas in 1803 and 1815. Moottoo
Vadooga
and his two brothers med their answer and thereby set up, by way of de fence,
first, that they were entitled to the whole Zemindar, of Shivagunga as the elder branch of
the family, and. that the Proclamation of Lord Clive in 1801 was in favour of
their father, and that it treated the Appellant's father as a mere manager for
his elder brother; secondly, that the eight villages of Padamattoor formed a sub-Paliaput attached to Shivigunga, which had been enjoyed
by Oya Taver and his ancestors as their own property; thirdly, that the Moochilkas
were
fabrications of the Appellant's father; and lastly, that the Zemindary was [*548] not the self-acquisition
of the Appellant's father, but had been enjoyed by him and his brother as
undivided brothers. The Appellant's father, by his replication, denied that the
eight villages formed a separate Paliaput, and rested his case upon his
self-acquisition of the Zemindary, and upon the Moochilkas. This suit was compromised by a Razinamah, dated the 5th of
January, 1826, to the effect, that the Defendants had no right whatever to the Shivagunga
Zernindary,
or to the other estate thereto belonging, as stated in the answer; and it was
agreed that the Defendants should enjoy the eight villages under the
Appellant's father, paying to him a kist of 1,000 pagodas annually, and that
the Defendants should also pay a part of the arrears of kist, the rest being remitted
by the Appellant's father. Under this arrangement Moottoo
Vadooga and
his brothers held the eight villages, paying the kist to the Appellant's
father, until his death, which event took place in the year 1829. On the death of the Appellant's
father, Moottoo Vadooga produced an alleged Will of the Appellant's father, dated
the 17th of June, 1829, the day of his death, which purported to give him
the Zemindary, in case the child of which the Zemindar's fifth wife was then
enceinte should prove not to be a male. The Appellant's father during his
lifetime had seven wives. He died without leaving any male issue, but left
three widows, one of whom, Purvata Natchiar, was enceinte. Purvata Natchiar, the sixth wife and
second widow, was, after the death of her husband, delivered of a female child,
thereupon the Government made over the Zemindary to Moottoo Vadooga. Claims were, [*549] however, preferred to
the Zemindary by the three surviving widows, Anga Moottoo Natchiar, Purvata Natchiar, and Moottoo Veray
Natchiar;
and a claim was also set up by the son of Cota Natchiar a daughter of the late Zemindar, as having been adopted
by Purvata Natchiar. The claims of Moottoo Vadooga being supported by many
of the family, the three widows were induced to give up their claims and that
of the alleged adopted son of Cota Natchiar and on the 29th of July, 1830, to execute a Razinamah admitting the right of Moottoo
Vadooga
as Zemindar, upon having certain lands made over to them for their maintenance. Moottoo
Vadooga
was then installed as Zemindar of Shivagunga by the Government, acting upon the Razinamah of the widows. On the
21st of June, 1831, Moottoo Vadooga died, and was succeeded and
possession of the Zemindary taken, by his son, Bodha Gooroo Saunny Taver. On the 23rd of March, 1832, Velu Natchiar a daughter of the
Appellant's father, on behalf of her infant son, Mattoo Vadooga Taver, filed a plaint, No. 4,
of 1832, in the Provincial Court of the Southern division of Madras against Bodha Gooroo
Saunny Taver to recover the Zemindary, on the ground that her son was the senior grandson
of the first wife of the Appellant's father, and as such his heir, according,
as alleged by her, to an answer of the Appellant's father to Government
touching the succession, dated the 11th of April, 1822, by which grandsons through
daughters were to be preferred to widows, and she insisted that the Appellant's
father and his brother constituted a divided family, and that the alleged Will
was a fabrication. Bodha Gooroo Sawrny Taver by his answer to this
suit insisted, that the Appellant's father had only acted as [*550] Zemindar by sufferance of his
elder brother, Oya Taver; that the Appellants father, by an order of succession
dated 22nd of September, 1806, had pointed out his nephews as his heirs in case of,
failure of sons; that the Will of Appellant's father was a valid Will; and that
in case of partible estates, nephews were preferred to daughters' sons, and
widows; and. in his rejoinder to the Plaintiff's reply he urged in addition,
that the self- acquisitions of an undivided brother descend, on his death
without the male issue, to his brothers and nephews in preference to widows and
daughters and daughters' sons. Points were recorded by the Court,
but the point of division, or no division, was not included, and the opinion of
Pundits of the Sudder Court was taken on the following case--"A Zemindary was held by a certain
person, after whom it was enjoyed by his son, his son's widow, and his son's
daughter. The daughter having been married, produced a daughter, who died
without issue. All of the above parties being dead, the Government published a
proclamation, that the hereditary right of succession to the Zemindary was extinct, and that the
Zemindary had escheated to the State. The Government therefore conferred the Zemindary
on A.,
who was collaterally descended from the original Zemindar, and granted him the
usual Sunnud of permanent property for it. "A. married seven wives, of
whom three were living at the time of his death. The first wife had a daughter,
who bore three sons and a daughter. The second wife - had a daughter who bore a
daughter. The third wife had three daughters the first of Whom bore a son and
two daughters, the second a [*551] son, and the third wag not married. The fourth,
fifth, and seventh wives had no issue. The sixth wife had a daughter, who was
not married. "A. had. an elder undivided
brother, B., who died before A., but some years after the Zemindary had been granted to A., leaving three sons.
the eldest of whom, C., on the death of A., took possession of the Zemindary, and continued to hold
it until his death, after which he was succeeded by his son, D., who is. now in
possession of the Zemindary. Question first.--The Zemindary having escheated to the
Government, and having by them been granted anew to A., and being therefore in
the light of self- acquired property, to whom ought it, after his death, under
the principles of Hindoo law, to have descended -to the widows of A. and their descendants,
or to C.,
the son of the elder brother, B.? "Question second.--Supposing
the line of descent to be in the widows and their descendants, who should be
considered the heir-the eldest surviving widow, or the eldest son of the
daughter of. the first widow deceased? "Question third.--Would it have
been consonant with Hindoo law for A. to have adopted one of his
grandsons (daughter's son) as his son? "Question fourth.--Supposing A. to have left a Will in
favour of his elder brother's son, C., constituting him heir to the Zemindary and to the rest of his
property, to the exclusion of his wives, daughters, and grandchildren, would
such Will be valid under the principles of Hindoo law?" To this case the Pundits on the 28th
of October, 1833, returned the following answers:--"To the first Query.--The Zemindary
granted.
by Government [*552] to A. should descend, after his death, to the son of his eldest undivided
brother. "To the second Query.--As the Zemindary
should
so descend, the widows of A. and their offspring are not entitled to it. "To the third Query.--A. should have adopted one
of his daughter's sons, 'Dowhittras,' and it would have been agreeable
to the Hindoo law. "To the fourth Query.--If A. had left a Will entitling
his nephew, C., to the Zemindary and other property, to the prejudice of his widows, his
daughters, and to his grandsons, such a Will will be consonant to the Hindoo
law; but the nephew is, however, bound to allow maintenance to the widows of A. Such are the texts
propounded in Vignyaneswara, Smriti Chandrika, and so forth." Witnesses were examined to prove the
alleged fact of the division between the Appellant's father and his brother, Oya
Taver;
the self-acquisition, the forging of the Will, and the opinion of the
Appellant's father on the order of succession in 1822, whereupon the Provincial
Court, acting on the opinion of the Pundits, passed a decree in favour of the
Defendant. Anga Mootoo Natchiar then asserted her claim,
as eldest widow of the late Gowery Vallabha, Taver, as heir to the Zemindary, and in the year 1833,
filed a plaint in forma pauperis, No. 3 of 1833, in the Provincial
Court of the Southern division of Madras against Bodha Gooroo Sawmy Taver, claiming the Zemindary as heir to her husband,
and stating that the last Ranee had adopted her husband, to whom the Government
confirmed the Zemindary by sunnud.; that the Defendant had taken forcible possession
of her husband's property and deeds; that he had forged a Will; and [*553] that advantage had been
taken of her to execute the Razinamah in ignorance of her rights, as
being a Hindoo widow she was not allowed to appear in public. The Defendant by his answer denied
the alleged adoption, and stated that the management of the Zemindary was conceded by Oya
Taver,
the rightful heir, to his younger brother; he denied also that the Will was a
forgery, and set up the order of succession in the arzee of 1806, and relied also
on the Razinamah executed in July, 1830, by the widows. The issue of division or
non-division, of the brothers, was not raised in this suit. The Provincial Court, by a decree
made on the 5th of September, 1834, in this suit, decided in favour of the
Defendant, on grounds that no adoption of Appellant's father by the Ranee had been proved; that
his claim to the Zemindary was from the free choice of the Government; and (assuming
that the brothers were undivided) that the self- acquired estate of an
undivided brother, dying without male issue, descended to his nephew in preference
to his widow. The Provincial Court also, by a
decree dated the 5th of December, 1834, decided against the
Plaintiff in the suit, No. 4, of 1832. The Plaintiffs in the two suits of
1832 and 1833 appealed to the Sudder Dewanny Court at Madras. Upon the appeals coming on for
hearing, the Sudder Court submitted to the Pundits attached to that Court the
following questions:--First, is the succession to the separate self-acquired
property of a member of an undivided family governed by the same rules as the
succession to the joint property of such family? Second, the self-acquired
property of an individual [*554] not being liable to division, according to the
Hindoo law, how can it be maintained that such property can be inherited by the
brother in preference to the widow of the possessor? The answer of the Pundits, dated the
16th of January, 1837, to the first
question was, "By saying that the separate self-acquired property of a
member of an undivided family is not liable to division, is meant nothing more
particular than that, at the time of partition of the common things, the
acquirer of the said property, or his son, son's son, or grandson, need not
give a share to the cousins out of the said property. Consequently, the
succession to the separate self-acquired property of a member of an undivided
family who died leaving no son, son's son, or son's grandson, is governed by
the same rules as the succession to the joint property of such family."
And to the second question, "The Dharma Sastras declare, as sanctioned
by the established usage, that among the undivided brothers if one die without
male issue the rest of his undivided brothers, &c., shall, take the whole
of his wealth and support his widows; but they do not declare, nor is it
customary, that the separate self-acquired property of an undivided brother
dying without male offspring should be given away to his widows. As it is,
therefore, settled that the widow of an undivided brother who died leaving no
son is entitled only to receive a maintenance, but not to succeed to any kind
of property to which her husband had possessed a right, it cannot be properly
maintained that such self-acquired property can be inherited by the undivided
brother of the possessor I in
preference to his widow." Authorities: "The text of Vrihaspaty and its commentary,
clearly show [*555] that the widow shall take the whole estate of a man' who, being
separated from his co-heirs, dies leaving no male issue, and that the whole
property of her husband who lived in a united family and died leaving no male
offspring shall devolve on his father, brothers, &c., who were not
separated from him. The text of Narada propounds that, among the undivided
brothers if one die without male offspring or enter a religious order, the rest
of the brethren shall divide his wealth, except the wife's separate property.
Consequently, the texts of Vrihaspaty and Narada, and the commentaries
there- of, and the text of Yajnawalkeya, declaratory of the right of the
widow, daughters, &c., and the commentary thereof (contained in the law
Book Mitacshara), furnish an authority to maintain that the self-acquired
property of an undivided brother can devolve on his undivided brothers after
his death." On the 17th of. April, 1837, the Sudder Court pronounced .a
decree in the two appeals, dismissing the appeal on behalf of Moottoo
Vadooga Taver, and deciding in favour of Anga Moottoo Natchiar's appeal, on the grounds,
that no adoption had been made by the Appellant's father; that a widow was
preferred to a daughter's son; that the Appellant's father and his brother were
divided; that the self-acquired property,- of a divided brother descended to
his widow in preference to his brother's son; that the Will was a forgery and,
lastly, that the Razinamah of 1830, was not binding on Anga Moottoo Natchiar. The decree of the Sudder Court being founded on
the assumption that the two brothers were divided, Bodha Gooroo Sawrny Taver
applied
for a review of judgment, on the ground, that the Appellant's father had, in
three suits, in the year 1804, [*556] pleaded that he and his brother Oya Taver were undivided, but the Sudder
Court
refused such review. Bodha Gooroo Sawmy Taver then appealed to Her Majesty in
Council from the decree of the Sudder Court, and, having died pending the
appeal, the appeal was, on the 15th of January, 1842, revived by Gowery Taver, his brother, the
Respondent's father. On this appeal a decree was made by the Judicial
Committee, and confirmed by an Order in Council, dated the 18th of June, 1844, by which the
decree of the Sudder Court of the 17th of April. 1837, was reversed, on the ground
that no points had been recorded in the Court below, as required by Mad. Reg. XV., of 1816, on
the question of division or no division of the family; but leave was given to
the widow to bring a new suit within three years, their Lordships stating that
the question of division was a most substantial question, and, without making
any order on the subject, intimated that the question of division or no
division appeared to be the only point on which the title would ultimately
depend (a). On the 2nd of September, 1844, Gowery Tavey was put into possession
of the Zemindary by Order of the Sudder Court. In consequence of the leave given in
the above appeal by the Judicial Committee of the Privy Council, Anga
Moottoo Natchiar flied, a plaint in forma pauperis, No. 2, of 1845, in the
Civil Court of Madura, against Gowery Taver and his younger brother, Namasivaya
Taver,
to recover the Zemindary. The plaint set forth the facts hereinbefore detailed, and
the Plaintiff claimed to be heir of her deceased husband, shaping her case in (a) See case reported, 3 Moore's
Ind. App. Cases, p. 278. [*557] a twofold manner; first,
on the assumption that it was incumbent on her to prove that her husband and
his brother, Oya Taver, were divided; that the divided character of the family was
established by the division and deeds which it was alleged had been taken
possession of with the other documents by Moottoo Vadooga, on the death of her husband;
by the adoption of her husband by the Ranee, and his separate residence with
the Ranee for many years; by the self-acquisition of the Zemindary from the Government, and
the homage paid to him by his elder brother; by the Moochilkas and leases of Padamattoor
and the
eight villages by her husband to Oya Taver and his sons; by the separate
residence of the latter at Padamattoor, a long distance from Shivagu'nga;
and by the Razinamah in 1826 of Bodha Gooroo Swamy Taver, admitting that the Zemindary
was the
self-acquired and separate estate of her husband, and that his elder brother
had no right to it. Secondly, she alleged that the question of division or no
division, was really immaterial, on the ground that, according to the Hindoo
law, undivided brothers had no right to share in the se1f-acquired and separate
estate of their brother, either in his lifetime or by descent, and she set out
in detail the alleged forgeries of Bodha Gooroo Sawmy Taver to prove the undivided
character of the family, and claimed the Zemindary and the mesne profits
thereof, with other personal property. Gowery Taver, the first Defendant, by
his answer, set up the answer of the Appellant's father of 1806 as to
succession; the alleged Will; the Razinamah of the widows, and the Pundits'
opinion in the Sudder Court in 1837; he contended, moreover, that the Plaintiff
ought, in the suit, to have confined [*558] herself to the question of division
or no division; that the acquisition of Appellant's father was by right of
cousinship and by consent of the elder brother, and he 'denied the adoption and
division, contending that the division ought to have been set up by Plaintiff
in her former suit, and in the appeal before the Sudder Court, and he further
denied the Hindoo law set up by Plaintiff, as to the descent of
self-acquisitions of an undivided brother; he also denied that the forgeries
were the work of his brother. Witnesses were called by the
Plaintiff to prove the deeds of division and the actual division between
Appellant's father and his brother in 1792, of the Padamattoor lands, and all their
property, consisting of Nunja and Puuja lands, Ulava and Kavil lands, cows, sheep, some
ornaments, coins, and debts; that the house at Padamattoor was taken by the elder
brother, and the house at Seruvayal by the Appellant's father; that the
brothers always lived separate, the Appellant's father living with Ranee
Velu, at
Shivagunga. On the other hand, the Defendants
called witnesses to prove the brothers were undivided; that the brothers enjoyed
the house and Padamattoor lands in common till the year 1794 most of the witnesses
spoke to this period, which was only two years' difference from the Plaintiff's
witnesses; that they performed religious ceremonies jointly, as well before as
after the year 1794. Some of the witnesses de- posed that the Padamattoor lands were enjoyed in
common, though when pressed they admitted that kist was paid for the eight
villages by Oya Taver to his brother, Gowery Vallabha Taver, as the Zemindar. The witnesses accounted
for the separate residence of Oya Taver at Padamattoor by reason that the water
[*559] of Shivagunga did not agree with him,
and on an alleged admission by the Appellant's father, whilst the suit of 1823
was pending, that he did not then set up a division. On the 27th of December, 1847, the Civil Judge,
Mr. Baynes, passed his decree, which was, in substance, to this effect, that the
only point was the division of the brothers in the year 1792; and be was of
opinion that the oral evidence on either side was equally worthless, but, if
anything, that the Defendant's witnesses were least credible; that the Moochilkas proved no division; that
the Razinamah, in suit, No. 4, of 1823, though by it the Defendant's father renounced
"the right to compel Appellant's father to divide the Zemindary in his lifetime,"
did not prejudice his right as undivided heir; that the opinion of the
Appellant's father, on the succession in 1806 and 1822 was more consistent with
the fact of no division having taken place. That the depositions in the suit,
No. 4 of 1832, on the point of division, though bearing the probability of
truth on them as having been given on an incidental point, were not to be
implicitly relied on, and, therefore, they were rejected by the Court altogether;
that the Razinamah of the widows in 1830 was binding on 'them, though given
when they were ignorant of their rights; that the forgery of the Will by the
Defendant's father ought not to be pushed against him as betraying any
consciousness of a want of title; and the decree concluded by deciding that the
brothers were undivided, and dismissed the suit with costs. At the same time
the Court held that the Plaintiff as widow was entitled to an adequate
maintenance. This was the first of the appeals
now brought before the judicial Committee of the Privy Council [*560] From this decree Anga
Moottoo Natchiar appealed, in forma pauperis, to the Sudder Dewanny Court at Madras: the
appeal being entitled, No. 7, of 1849. Pending the appeal Gowery Taver died, and left the
Respondent, his eldest son and heir, then an infant, who revived the appeal. The appeal, No. 7, of 1849, having
been heard, the Sudder Court reserved its judgment; but, in the meantime, on the
23rd of June, 1850, Anga Moottoo Natchiar died childless, and the appeal, was
held by the Sudder Court to have abated; and the Court issued a notice to the
heirs of Anga Moottoo Natchiar to come forward within six weeks and continue the
suit. The sixth and seventh widows having
pre-deceased Anga Moottoo Natchiar, several claimants presented
themselves as heirs in remainder to the Zemindary, as being the separate
estate of Appellant's father, but these claimants were afterwards reduced to
two. First, the Appellant as the younger daughter of the Zemindar by his third wife, who
had died in his lifetime, the Appellant then having a husband and sons, and
joining with her two sisters, Bootakha Natchiar and Kota Natchiar, both of whom were since
deceased. Secondly, Sowmea Natchiar, a daughter of the Zemindar by his sixth wife, the
second widow. On the 24th of August, 1850, the Appellant and
her two sisters filed their petition in the Sudder Court, claiming to carry
on the appeal, as heirs in remainder to the Appellant's father, in succession
to Anga Moottoo Natchiar deceased, as agreeing between themselves for the enjoyment
successively, by Hoo.. akha Natchiar and Kota Natchiar, for their successive
lives, with ultimate remainder to the Appellant; and Sowmea. Natchiar filed her
petition, claiming to [*561] carry on the appeal as heiress, niece and devisee
of Anga Moottoo Natchiar. Vadooga Taver, on the 26th of September, 1850, the Plaintiff in
the original suit of the 23rd of March, 1832, No. 4 of that year, filed a
petition claiming as heir also, as being descended from the senior wife of the
Appellant's father, but his claim was not prosecuted. On the 26th of September and the 17th of October, 1850, the Respondent by
his guardian filed counter petitions praying the Court to refuse the Appellant,
and the other alleged heirs in remainder, leave to carry on such appeal, and
also praying the Court to refer them to the institution of a new suit, on the
ground, that in such new suit he might be able to set forth particular
objections to their claims from their individual acts, such as accepting
maintenance from his father and other members of his family. An Order was passed by the Sudder Court, on the 21st of October, 1850, declaring that
none of the claimants could be accepted as the heir of the deceased Appellant,
as she was a childless widow, but that they might simply plead a right of
succession on her death as the daughters of the Zemindar, and that, although the
decision of the appeal might materially affect such right of succession, still
that would not vest in them the right to continue it, but the Court, at the
same time, observed that their order would form no bar to the institution by
any of the claimants of a new action for the recognition of their alleged
claims, if instituted on or before the 30th of April, 1851, and that at the
expiration of that period the decree of the Civil Court would be considered
final, [*562] On the 25th of November, 1850, the Appellant and her sisters filed
their petition for a review of the Order of the 21st of October, 1850, stating, that Aga
Moottoo Natchiar, as widow, had a life interest only in the Zemindary, and that it was only at
her death that a title accrued to them as the heirs in remainder, and that
during her lifetime they could not have instituted a suit, and they claimed to
be entitled to a term of twelve years from the death of Anga Moottoo
Natchiar
to prosecute their claim. Upon the presentation of these
petitions the Sudder Court, on the 7th of March, 1851, submitted the following
question to the Pundits of that Court, for their opinion as to what person
should supply the place of Anga Moottoo Natchiar in the appeal:--"A Zemindar, A., who had married seven
wives during his lifetime, died, leaving behind him his fifth wife, B.; his second wife's
daughter, G.; his third wife's daughters, D. and E.; his sixth wife's
daughter, F.; and his wife's grandson, G., by her daughter. B. instituted a suit
claiming the succession to the Zemindary, on the ground that a family
division had taken place before the death of A. Supposing the suit of B. grounded on family
division to be just, you will explain who of the above mentioned individuals
are entitled, under the Hindoo law, to supply the place of B., and carry on the
suit?" The Pundits gave to this question
the following answer:--"Neither of the parties marked C., &c., in the
question, as being the offspring of B.'s husband by his other wives, is
legally entitled to conduct the appeal referred to; neither the daughters of
rival wives, nor their sons, being authorized by the Hindoo law Books, Vijnyaneswara, &c., prevailing in
this [*563] part of the country to perform funeral rights or inherit property. In
prescribing the order of succession the law Book, entitled 'Vijnyaneswara,' draws no distinction
between a woman's peculiar property called 'Stridhana' and that which
devolved. upon her by inheritance; it on the contrary treats them jointly in
propounding heirs to succeed to the property of a childless woman; further, the
said law Book makes no mention of the daughter, or of the son of the daughter
of a rival wife equal in class, although it speaks of the daughter of a rival
wife being superior by class. The said authority likewise, in propounding the
distribution of the property of a childless woman, declares that the property
of a childless woman, who had been married in any of the forms denominated 'Brahma,' &c., shall (after
her demise) devolve upon her husband, and on failure of him upon his nearest
kinsmen sapindas; but who these sapmndas are the work does not describe (in
the particular place where the said succession is mentioned); it, however, in
treating upon the succession to the property of a sonless man, adverts to the
text which says, 'The relation of the sapindas, or kindred connected by the
funeral oblation, ceases with the seventh person.' From this is to be gathered
that all the kindred sprung from the same family, or from the same primitive
stock, and reaching the seventh degree in direct descending line, are 'sapinda,' kinsmen of each other;
such sapindaship cannot by any possibility exist in step-daughters or their
spms mentioned in the question. It is further observable, that the right of
succession to the property of a deceased person is generally dependent upon the
successor's competency to confer benefits [*564] on the deceased by the
performance, as it is stated by the Hindoo lawgivers, of the deceased's funeral
rites, but in the compact series of heirs competent to perform such exequial
rights step-daughters and their sons are nowhere mentioned. It is for these reasons
that we have stated in our answer of the 13th instant, 'that the daughters of a
rival wife or their sons, are no heirs.' 18th of March, 1851. The head
Translator of the Court having in returning this paper conveyed to us the
Registrar's requisition that we should, set forth the particulars of sapindas, and specify whether or
not a maiden daughter is a sapinda, and as such entitled to succeed to
property, we beg to submit the required particulars as follows:--1. The law
Books 'Vinyaneswara,' &c., declare that of a woman dying without issue, and
who had become a wife by any of the four modes of marriage denominated 'Brahma,' 'Daiva,' 'Arisha,' and 'Prajapatya,' the whole property
belongs in the first place to her husband, and on failure of him to his nearest
kinsmen 'sapindas,' who are his mother, father, uterine brother,
step-brother, uterine brother's son, step-brother's son, paternal grandmother,
paternal grandfather, sons of ditto, grandsons of ditto, paternal
great-grandfather, sons of ditto, and their issue, these persons being in the
chapter on succession to the estate of a sonless man,' declared to be the
nearest 'sapinda' kinsmen of the man destitute of male issue. 2. In the Book
called, 'Varqdarajeyum,' chapter 'on succession to the estate of a sonless man,'
section 'on daughters' succession,' the author declares a maiden daughter to be
'sapinda' of her father to enable her to inherit his property in preference to
his married daughter; [*566] but in the chapter 'on succession to the property of
a 'childless woman,' the said author does not declare a daughter entitled ¥to
inherit the property of her step-mother. The sapindaship of an unmarried
daughter is but temporary, inasmuch as it ceases with her marriage. It only
tend to invest her with inheritance in preference to married daughters who are
not 'sapindas,' but it cannot give her any right to succeed to the property of her
step-mother who leaves no issue behind her. Impressed with this opinion, we
have stated that daughters of rival wives are in general not entitled. to
inherit the property of their step-mothers." On, the 28th of April, 1851, the Sudder
Court
put to the Pundits this further question--"Your attention is requested to
the annexed genealogical trees, and you will be pleased to state whether
anything thereon leads you to modify the opinions expressed by you on the 18th
and 20th of March, 1851, and to that question the Pundits made the following
reply- We have perused the four genealogical trees annexed to the foregoing
question, and observe that all the parties therein referred to are B.'s
step-daughters, and 'their 'Sons and daughters, who by the Hindoo law Books,
'Vijnyaneswara,' &c., which prevail in this part of India, are not entitled
either to perform funeral rites or to inherit property. We, therefore, see
nothing to induce us to modify the opinion already expressed by us that the
said parties have right at all. On the 1st of May, 1851, the Sudder Court revoked their
Order of the 21st of October, 1850, and directed the appeal to be replaced upon
the file and the present Appellant and the other [*566] claimants to be made
supplemental Appellants, and the Court resolved at once to hear the appeal, and
that if it should be sustained, the Court would then determine (in order that
the rights of Appellant and the other supplemental Appellants as against each
other and as against the Respondent might be tried) whether the record should
be remanded to the Court of original jurisdiction, or whether any other more
appropriate course could be pursued in regard to he same. Accordingly the Appellant and the
other heirs in remainder prosecuted the appeal suit, No. 7 of 1849, as
supplemental Appellants, and several proceedings were had therein. On the 22nd of March, 1852, the Sudder Court put the following
question to its Pundits in reference to the appeal suit, No. 7 of
1849:--"A Zemindar, A., married during his life seven wives, and died, leaving
behind him B., his fifth wife; C., his daughter by his second wife; D. arid E., his daughters by his
third wife; and F., his daughter by his first wife; and. G., the son of his
daughter by his first wife. The fifth wife also died subsequently. Supposing
the family to be. divided, can the above-mentioned individuals be admitted to
be the heir, or heirs, of the deceased Zemindar, A. If such admission is made, who are
his heirs You will explain this subject." On the same day the Pundits
returned the following answer:--"According to the passage in the section
on the right of inheritance to the estate of a man dying without male issue, B., the fifth wife of A., succeeded to the whole
of his estate on his death. Neither the daughters of A., nor the descendants of
such daughters, have a right to the said estate during [*567] the lifetime of the said
B. Therefore, the estate having devolved on B. by the death of her husband, her
daughters arid others must be her heirs. Neither the daughters of A., nor the
descendants of such" daughters who belong to a line different from that of
B., can be recognized as heirs to the said testate." This Sudder Court afterwards put the
following further question to the Pundits, in reference to the suit, No. 7 of
1849:--"A., a Zemindar who had married seven wives during his lifetime,
died, leaving behind him B., C., and D., the fifth, sixth, and seventh wives; E., his daughter by the
sixth wife, C.; F., his daughter by the first wife; I., J., and K., daughters by the third
wife, and nine individuals his grandsons, by his daughters. by the first and
second wives who died before him. Subsequently C. and D. died, and B., the
fifth wife, a few years after them. Supposing the family of A. to be divided,
can any of the above- mentioned individuals be admitted as heir, or heirs, to
the Zemindary, and if such admission is made, who shall be considered as heir'? You
will explain this." The Pundits gave to that question
the following answer--"Although the fifth, sixth, and seventh wives, who
survived the Zemindar, A., possessed the power of wives, yet the Hindoo law,
entitled Smriti Chandrika, confers the right of the Zemindary upon the sixth wife,
because she has a daughter. The daughter of the sixth wife is, therefore,
entitled to the Zernindary after her mother's death." When the supplemental appeal came on
to be heard, the Sudder Court, by an Order dated the 19th of April, 1852, reversed their
Order of the 1st of May, 1851, on the ground that, as the Appellant and the other
parties [*568] claiming as heirs did not claim as representatives to the late
Appellant, the widow, but on their own distinct rights as descendants of
Appellant's father, they could not be substituted for her, and carry on her
appeal, but the Court informed the Appellant and the other parties claiming as
heirs in remainder, that they could pursue their rights in the Zillah Court in the first
instance, and the Court struck the appeal suit, No. 7 of 1849, off the file, as
having abated on the death of the Appellant, Anga Moottoo Natchiar. This was the first decretal Order
now appealed from. The Respondent, by his guardian, being
dissatisfied with this Order, filed a petition in the Sudder Court, insisting that
though upon the abatement of the appeal suit by the death of the widow, the
next heir after her claiming under the same title might be entitled to revive
such appeal, yet she could not institute a new suit in the Zillah Court, after a judgment
by such Court in the suit by the widow claiming as previous heir, and
submitted, that it was competent for the Sudder Court, to admit the party next in
descent, claiming under the same title, as a supplemental Appellant, and in his
petition he entered at great length into the hardship of being obliged again to
litigate the question of division or no division of the family, and finally
prayed for a review of the Order of the 19th of April, 1852. By an Order of the 16th of September, 1852, the Sudder Court adhered to their
-previous Order of the 19th of April, 1852. The Appellant then, in the first instance, applied to the
Civil Court of Madura for leave to sue in forma pauperis, and that Court, by an
Order of the 16th of June. 1854. referred certain ouestions unon noints of
[*569] Hindoo law raised in the case to the law officers of the Court, and
after receiving the Fut wah of the Pundits, rejected the Appellant's
application, by an Order of the 6th of November, 1854; and after several other
Orders made by the Civil Judge, and appeals to the Sudder Court, the latter Court
ultimately by a further Order, dated the 10th of March, 1856, declared that the
Order of the Civil Judge disposed simply of Appellant's application to sue in
forma pauperis, and that it was no bar to her prosecuting her claim in the
usual form. -. Accordingly, on the 5th of December, 1856, the Appellant
filed her plaint in a suit, No. 10 of 1856, in the Civil Court of Madura, against the guardian of
Respondent, then a minor, and the Collector of Madura, as agent of the Court
of Wards, for the recovery of the Zemindary and also of the profits thereof for
six years; claiming the Zemindary, as having been the divided and
self-acquired estate of her father; contending that, even if the brothers were
undivided, the self-acquired property of an undivided brother descended to his
widows and daughters in preference to his nephews; and that she was entitled as
the next heiress in remainder of the Zemindary, after the death of Anga Moottoo
Natchiar. The guardian of the Respondent (the
minor Zemindar) by his answer objected to the competency of the suit, as
the cause of action had arisen upwards of twelve years previous to the institution
thereof, and was barred, under cl. 4, sec. 18, Mad. Reg. II. of 1802, as the
Appellant's father had died in June, 1829; and he set up the Orders of the Sudder Court of the 21st of
October, 1850, the 1st of May, 1851, the 19th '.of April and 16th of September, 1852, as a bar to the [*570] suit. The answer also
denied the Appellant's title as next heiress, and challenged, the fact that the
Zemindary had been the divided estate of Appellant's father, entering at great
length into the merits to prove that the estate was undivided. The other Defendant, the Collector
of Madura, by his answer disclaimed any right in the Zemindary. Sowmea Natchiar, claiming to be the sole
heiress of Gowery Vallabha Taver, as his only daughter by his sixth
wife, then commenced a suit, No. 4 of 1857, against the Respondent, to recover
the Zemindary. The Respondent, among other things, pleaded the d?cree of the 27th of December, 1847, in bar to that
suit. No evidence was allowed to be
entered into by the Appellant in the suit, No. 10 of 1856, nor were any points
recorded therein. On the 25th of August, 1859, the Judge of the
Civil Court, Mr. R. Cotton, dismissed the suit of the Appellant, and of her, sister, Sowmea
Natchiar,
in the suit No. 4 of 1857. The material part of the decree made in both suits
was as follows.--"The Plaintiffs in both the suits sue the guardian of the
present minor Zemindar, and the Collector of Madura, as the agent for the Court of
Wards, for the recovery of the Shivagunga Zemindary, each averring herself
to be the sole heiress of the deceased Zemindar, Gowery Vallabha Taver, who died in 1829. The
Plaintiff in the original suit, No. 10 of 1856, as his only surviving daughter
having male issue; the Plaintiff in the original suit, No. 4 of 1857, as the
only daughter of the widow (sixth) who survived her husband--both assert their
father was divided from his brother, Oya Taver. The Plaintiff in the suit, No. 10
of 1856, states, that she sues [*571] for the estate solely as the only surviving daughter
of her father the late Zemindar, having male issue, not as heir or successor to Anga
Moottoo Natchiar; that lier suit is based on the pleaded division between her at her and
his brother, and. that if they were un- divided she has no claim to the
ancestral property, but still claimed the Zemindary, as the self-acquired
property of her father, under the law contained in pages 33, 152, 153, and 155
of Macnaghten's "Hindu Law," Vol. II. If the brothers were
divided, she asserts that the law, as propounded by the Madras Pundits in appeal, No. 20
of 1838, and by the Bengal Pundits in their Futwah of the 23rd of February, 1837, and enumerated in
a paper put in, establishes, her right. The Plaintiff in the original suit, No.
4 of 1857, states, that she sues as the daughter of the Zemindar's surviving widow--the
other two widows (fifth and seventh) who survived the Zemindar having died childless;
she avers, however, that had they been living now they would have no right to
the estate: thus admitting that her right to the estate commenced on the death
of her mother in 1832, when she was in her sixth year, and that her present
plaint was presented only on the 24th of June, 1856, or twenty-three and. a
half years after the death of her mother; that if her father and his brothers
were divided, as she pleads, her right is clear by the Futwahs of the Madras and Bengal Pundits; if undivided,
by that of the latter only. The Court proceeds to determine--first, whether it
is competent to allow the plea of division to be advanced. The facts of the
case are briefly as follows:--Anga Moottoo Natchiar, the mother of the
Plaintiff in the original suit, No. 4 of 1857, instituted a suit, No. 3 of
1833, before the Southern Provincial Court her, suit [*572] was dismissed; the
Judges considering that as the late Zemindar and his brother were undivided, the
Pundits' Futwahs clearly showed she had no right to succeed her husband. In
appeal, the Judges of the Sudder Court were of opinion, that the
evidence adduced was sufficient to show that a division had taken place; and
the law officers of their Court having, under these circumstances, declared the
widow was the heir of her husband, they reversed the lower Court's decision,
awarding the estate to Anga Moottoo Natchiar. On appeal to Her Majesty in
Council, it was discovered that the very material question of division or non-
division, on which the case hinged, had never been made a point, nor had
evidence been cited to prove it; the Judicial Committee, therefore, dismissed
the appeal, but, for certain reasons given, they declared that the Plaintiff, Anga
Moottoo Natchiar, might bring a fresh action for the estate, if she did so within three
years. She¥ accordingly instituted the original suit, No. 2 of 1845, when the
point of division or non- division, to which the Judicial Committee of the
Privy Council had restricted further investigation, was tried, and the late
Judge, Mr. Baynes, on a full and care-ful consideration of all the evidence,
oral and documentary, decreed that division had not been proved: on the
contrary, he conceived that the Defendant had, as clearly as the circumstances
would admit of, shown that the Brothers were undivided, and he, therefore,
dismissed the suit, as might have been expected. The Plaintiff appealed (No. 7
of 1849), but before the case was determined, she died; on which several
parties petitioned to be allowed to carry on the appeal. Their petitions were
first rejected, but the Court. apparently considering that justice required [*573] that the lower Court's
award should not become immediately final, gave permission to the Petitioners
(the Plaintiffs) to bring regular actions for recovery of the estate, provided
they did so before the 30th of April, 1851. Instead of taking advantage of the
Court's period of grace allowed them, the Plaintiffs petitioned the Court for
review of their proceedings, the result of which was, that the Court overruled
their former proceedings, and adjudged that the Plaintiff's petitions could be
admitted to carry on the appeal, No. 7 of 1849. Subsequently, on a petition
from the Defendant, the Sudder Court again took up the case, and finally revoked
their proceeding of the 1st of May, confirming the principle laid down in those
of the 21st of October, 1850, namely, that the Plaintiffs could not be allowed to
carry on the, appeal, which, having abated on the death of the Appellant, the Sudder Court struck off their
file, referring the Plaintiffs to the regular Court of original jurisdiction as
those in which they should prefer, in the first' instance, any claims they
might have to the estate. It will be observed that the period originally
allowed them for bringing an action had then expired, and no second period of
grace was given. Upwards of four years after this final Order of the Sudder had been passed, the
Plaintiff in No. 10 of 1856 brings the present action, and a year later the
original suit, No. 4 of 1857, is likewise filed. The original suit, No. 2 of
1845, was specially' brought to determine the status of the late Zemindar, and for no other
purpose; the evidence was restricted to that point, and, consequently, if ever
there was a judgment in rem, the decree in that suit, No. 2 of 1845, is one: in
that decision it was dearly [*574] determined that the late Zemindar and his brother, were
undivided. This judgment the Court is not competent now to question, still less
to overrule; as a judgment in rem, it is conclusive against all the world, and
no evidence can be admitted against it, unless it can be shown it was
collusively or fraudulently given (Norton's 'Law of Evidence,' 470; Taylor, 'On
Evidence,' Vol. II. 1489). Taylor, in the section quoted, says, 'This rule
appears to rest partly, if not principally, upon the broad ground of public
policy, it being essential to the peace of society that the social relations of
every member of the com- munity should not be left doubtful, but that, after
having been clearly defined by one solemn adjudi- cation, they should
conclusively be set at rest.' And in the following section, 1490, it is further
stated, that 'the decision cannot be impeached in the same or another Court, by
showing that the facts on which it immediately rests are false.' The Court is
not aware on what grounds permission was granted by the Sudder Adawiut to the Plaintiffs to
bring the suits; the avowed object of which was to impeach this judgment in
rem; but the period of grace passed without any suit being brought, and no
further period was allowed. Possibly the Sudder Court, in reconsidering the matter,
discovered that they were not competent to grant it; or the omission may have
been an oversight. As, however, on the former occasion, the Court gave only
eighteen months, it is to be presumed further grace, if it had been given,
would not have exceeded a like period. Be this, however, as it may, in the
absence of any precedent warranting such impeachment of a judg- ment in rem,
and being of opinion 'that nothing can [*575] be more inconvenient or
dangerous than a conflict of decisions in different Courts; and that if
judgments in rem are not regarded as binding upon all Courts alike the most
startling anomalies may occur' (Taylor 'On Evidence,' 1493), this Court is
unable to accept the pleadings of the Plaintiffs on the status of the late Zemindar, save as an undivided
brother. This status being thus determined, it only remains to see if the
Plaintiffs have by law any claim to the estate. The Plaintiff, in original
suit, No. 10 of 1856, admits she has none, save on the ground that it was
self-acquired, and pleads the law as laid down in Vol. II. of Macnaghten's 'Hindu Law,' pp. 33,
152, 153, and 155, as establishing her right. A reference to which by the
Plaintiff's Vakeel would have shown him that the law therein propounded has
reference solely to 'partition of property,' not 'succession,' and that it is
clearly laid down in the preceding para., in p. 33, that, after the death of
the widow, the property, becomes 'vested in the heirs of her husband,' but here
she is, not a widow, but a daughter; the law,, therefore, which treats of
widows is of no avail to her, but rather the contrary. The Pundits of the
Madras and Bengal Sudder Courts are unanimous that the estate of the late Zemindar would descend to his
widow only if he was of a divided family. Under the above circumstances, this
Court is of opinion, that the Plaintiff in the original suit, No. 10 of 1856,
has no claim in law to the estate sued for, and, therefore, directs that the
suit be struck off the file without going into the other objections raised by
the Defendant in his answer, the Plaintiff paying all costs. The Court's
reasons for refusing to allow the Plaintiff, in suit, No. 10 of 1856, to plead
that the brothers [*576] were divided, are equally applicable to the case of the
Plaintiff in the suit, No. 4 of 1857. She bases her claim to the estate on the
law propounded in the Futwahs of the Pundits filed in this and the suits referred
to above; these, however, all refer to widows, and not daughters, and declare
widows only entitled to succeed to their husband's ancestral and self-acquired
estate when he is one of a divided family. The Court, therefore, is of opinion,
that she also has failed to show that she has any claim at law to the estate
sued for (Vide Strange's "Manual," pars. 346, 337, 339, 340, and 342); and,
without going into the other objections raised in the answer to her right to
sue, resolves to strike off her suit likewise from the file, she paying all
costs. The Court, in continuance, would observe, that though it has taken the
late Judge's decision in suit, No. 2 of 1845, as a judgment in rem, and, therefore, not to
be impeached, yet that, after a careful study of the whole case (which has
occupied it almost incessantly for a period of six weeks), it fully concurs
with the late Judge in all he has urged in that decree and the judgment awarded
by him. The Judicial Committee of the Privy Council, in their judgment (a), distinctly declare 'it
exceedingly desirable that it should be known (not by the parties to the suit
alone, but) to all those who are interested in this property, that the question
of fact as to division or no division appears to be the only point on which the
main question of title to the property will ultimately depend.' By thus
declaring, this Court understands that the question of status being about to be
[*577] decided, all interested
were then invited to come forward to prove their assertions to division or
non-division, as the decision given would be final. There cannot be a doubt
that the Plaintiffs in the above suits were thoroughly acquainted with the
decree of the Judicial Committee of the Privy Council; and it was for their
interest to have assisted Anga Moottoo Natchiar to prove division, and see that all
the evidence procurable was then advanced, and that the decision passed on the
merits by the Civil Court (unless such decision is ruled to be only equivalent
to an adjudication of settlement by order of Justice) is conclusive against all
the world as regards the status of the late Zemindar; but allowing that the
decree in the suit, No. 2 of 1845, was not final when it was passed, because
appealed from, it appears to this Court that it is undoubtedly so now, inasmuch
as it cannot be affected by any other suit, and there are no parties competent
now to question it in appeal. It is laid down in the Sudder Adawlut decrees, No. 58 of 1854,
No. 66 of 1855, No. 10 of 1852, No. '5 of i857, and Sudder Adawlut decrees, No. 86 of 1854,
par. 19, that non-division is to be presumed until division is proved;
non-division was the alleged state of the family when the suit was brought;
non-division was the decision passed after a prolonged and patient
investigation in the suit, No. 2 of 1845. and non-division was the status when
the Plaintiff (Appellant) died. Such being the case, how can the Plaintiffs'
claims, which are based and only sustainable on the ground that division had
taken place, be admitted? If they can be, where is the limit, and what becomes
of the rule, that judgments in rem are conclusive against all the
world?" [*578] The Appellant appealed to the Sudder Court at Madras against this decree,
praying that the suit might be remanded for adjudication on the merits. On the 5th of November, 1859, the Sudder Court, by its decree,
affirmed the decree of the Civil Judge of Madura of the 25th of August, 1859, on the
ground that the question of division had been finally set at rest by the decree
in the suit, No. 2 of 1845; that although that decree had been appealed from by
the then Plaintiff, Auga Moottoo Natchiar, on her death without heirs the
appeal had dropped; and that the appeal could not be opened, because the title
of the Appellant had not at the time of that decree come into existence. This was the second decretal Order
appealed from to the Privy Council. The Appellant petitioned the Sudder Court for leave to
appeal to Her Majesty in Council against the last-mentioned Order, which that
Court on the 3rd of March, 1860, refused, on the ground, that the decree of the
Civil Judge of the 25th of August, 1859, was final under sec. 10, Reg. II. of
1802, and cl. 2 & 10, sec. 5 of Reg. XV. of 1816. This was the third decretal Order
appealed from. Leave was afterwards granted by
their Lordships, upon special petition to Her Majesty in Council to the
Appellant to appeal from the decree of the Civil Court of Madura, dated the 27th of
December, 1847, which, with the decrees of the Sudder Court of the 19th of
April, 1852, the 5th of November, 1859, and the 3rd of March, 1860, and the
decree of the Civil Court of Madura, dated the 25th of August. 1859,
were those now appealed from. The Appellant's two sisters, Bootaka
Natchiar
and [*579] Kota Natchiar having died, the Appellant succeeded to their rights, and
all the other legal heirs in remainder after the death of Anga Moottoo
Natchiar,
withdrew their claims, except Sowmea Natchiar, who, however, died pending the
appeal in England. The Solicitor-General (Sir R.
Palmer)
and Mr. W. W. Mackeson, for the Appellant. Our first proposition is, that the Zemindary in question, which
constitutes a Raj, or principality, and impartible, was the separate and
self-acquired estate of the Appellant's father, Gowery Vallabha Taver, and, secondly, that the
family property had been divided in his lifetime. He and his eldest brother, Oga
Taver,
were, we contend, by the Hindoo law divided brothers, and the real point now in
issue lies between the Appellant, as representing one line of heirs, the lineal
female descendants of Gowery Vallabha Taver on the one hand, and the
Respondent, the lineal descendant of his elder brother, Oya Taver, on the other, and is narrowed to the
validity of the decree of the Civil Court of Madura of the 27th of December,
1847, which decree, we submit, was manifestly erroneous. If the sole question
to be tried in that suit was division, or no division; the evidence was all one
way, and in favour of the Appellant's father and his elder brother, Oya
Taver,
being divided brothers. The fact of the division was established by the deeds
of division, and the actual division in the year 1792 was fully proved by the
witnesses in the suit, No. 2 of 1845, as well as by other witnesses
incidentally in the suit, No. 4 of 1832. The division was also proved by the
fact of the residence of the Appellant's father with the Ranee at Shivagunga, and his living separate
from his [*580] divided brother at Padamattoor, previous to and until his
installation as the Zemindar under the grant from the Government. The adoption of
the Appellant's father by the Ranee, which, whether regular or not, was
inconsistent with the Respondent's contention of his continuance as part of an
undivided family. Then there is the further fact of his installation as Zemindar, and his living alone at
Shivagunga, from the year 1801 until his death in the year 1829, separate from his
brother and his family, who resided at Padamattoor. These are all
circumstances inconsistent with the supposition that he was a member of an
undivided family. Again, the leases granted by him as Zemindar to his brother and
nephews, and the payment by them of kist, are all acts which by the Hindoo law
are considered the strongest evidence of division. So again, by the Razinamah made in the suit, No. 4
of 1823, after a claim to the division of the Zemindary as co-heirs, in which
the nephew, Moottoo Vadooa, and his brothers, admitted that they had no such right.
Sepa- ration of interest', or division, is a sole question of fact, which the
evidence here fully establishes. In W. H. Macnaghten 's "Hindu Law,"
Vol. I. p. 54, he says, the criterion of division seems to consist of members
of the family entering into distinct contracts, and other similar acts, which
tend to show that they have no dependence on or connection with each other.
Coleb. Dig. Vol. III. pp. 415; Strange's "Hindu Law," Vol. I. pp.
225-7 [2nd Edit.], ib. Vol. II. p. 397, are authorities which establish the
same proposition. A partition is presumed if they have sepa- rate possession of
property. Than Sing v. Mussumaut Jeettoo (a). The only evidence in support of ---------- (a) 2 Ben. Sud. Dew. Rep., 324, ---------- [*581] the theory of the family
being an undivided family is, that some of the religious ceremonies were
jointly performed by both brothers. But such circumstance, even if proved, is
held by the Hindoo law to be, but slight evidence in favour of the family being
undivided, the religious ceremonies being constantly performed by divided
brothers. Strange's "Manual of Hindoo Law," sec. 296 [edit. 18631.
But we take a higher ground; we contend that even if part of the ancestral
estate was at one time common property, yet that the Zemindary was self-acquired by the
Appellant's father. The grant by the East India Company to Gowery Vallabha
Taver was
an act of sovereignty, the Zemindary having escheated for want of lineal
heirs. Being by Swinud the grantee takes as purchaser, and the Zemindary must, therefore, be
considered as self-acquired property, as in the case of confiscation. The East
India Company v. Syed Ally (a), Ellavambadoo Mootiah Moodeliar v. Ellavambadoo
Nineapah Moodeliar (b), Keonwur Bodh Singh v. Seonath Singh (c), Mahipat Singh v. The Collector of
Benares (d). Again, it is an
established principle of Hindoo law that property acquired without using the
patrimony by one brother living in partnership belongs to him exclusively. W.
H. Macnagliten's "Hindu Law," Vol. II. pp. 33-152-3-5. It belongs at
his death to the acquirer's individual heir. Strange's "Manual of Hindoo
Law," sec. 238. This brings us to the first point,
who by the Hindoo law prevailing at Madras is to succeed to th4 Zemindary on Gowery Vallabha
Taver's death? I held in severalty, after his death it undoubtedly goes to his
widow, who has, however, no right (a) 7 Moore's Ind. App. Cases, 578. (b) 2 Strange's Mad. Cases, 333. (c) 2 Ben. Sud. Dew. Rep.
92. (d)
5 Ben. Sud. Dew. Rep., 32. ---------- [*582] to dispose of it. W.
H. Macnaghten's "Hindu Law," Vol. I. p. 19, ib. Vol. II. p. 33; Strange's "Hindu Law,"
Vol. I. pp. 121-137 [2nd edit.]; Mohun
Lal Khan v. Ranee Sirnomunnee (a), Keerut Singh v. Koolahul Singh (b), Nund Koowur v. Tootee Sing; note to Mussummaut
Gyan. Koour v. Dookhurn. Singh (e), Musst Lalchee Koowur v. Sheopershad Sing (d). Cossinauth Bysack v.
Hurrosoondery Dossee (e). The widow's right in Madras, to inherit her deceased
husband's property, he dying without issue male, and the family divided, is
fully discussed in the Mitacshara on Inheritance, eh. II., sec. 1, pi.
39; and in the Daya-Bhaga, ch. XI. sec. 1, pi. 3. 4. 14; Coleb. Dig. Vol. III. eh.
CCCXCIX.; Strange's "Manual of Hindoo Law," secs. 315. 326 [edit.
1863]; Strange's "Hindu Law," Vol. I. pp. 134-5 [2nd edit.]; ib.
Vol. II. p. 231, and the opinion of Sir William Jones, cited in Strange's "Hindu Law,"
Vol. II. p. 250. The Sandayar case (f) [*583] ---------- (a) 2 Ben. Sud. Dew. Rep., 32. (b) 2 Moore's Ind. App. Cases, 331; S.
C. 4 Ben. Sud. Dew. Rep., 9. (c) 4 Ben. Sud. Dew. Rep., 330. (d) 7 Ben. Sud. De. Rep., 22. (e) Morton's Cal. Rep., 86. (f) The decree of the Provincial Court
for the Southern division, in the suit Coopasawmy Coolapa Nuik v. Yataamaul, dated the 13th of October, 1826, was filed in this
case. The question there raised was, who
was enit1cd to succeed to the Zemindary of Sandayar. From the statements
laid before the Pundits of the Sudder Court for their opinion, it
appeared, that the Zemindary was an undivided estate, and it was the property
of a common ancestor, A.; that it was inherited in regular succession by B., C., and D.; that D., having no issue,
transferred it in his lifetime to his uncle, E., who was the next male heir
entitled to inherit, in satisfaction of a claim for money preferred by the
latter. The Provincial Court's questions to
the Pundits were, first, whether such transfer could he held to constitute the
estate the separate acquisition of E.; and, secondly, if such transfer to the
exclusion of co-heirs was illegal, whether the widows of F., who [*583] ---------- is on all fours with the present
case and strongly in our favour. And in a work called The Principles of Hindu
and Mohammadan Law," by W. H. Macnaghten, edited by H. H. Wilson, it is laid down at pp.
21, 24, 5 [2nd edit., 1862], that according to the doctrine of the Smriti
Chandrika, a widow, being the mother of daughters, takes her husband's
property, both moveable and immoveable, when the family is divided, and in default
of the widow the daughter inherits, ib. p. 22. Therefore, on the widow's death
the Appellant, as daughter having male issue, succeeded to her father's estate.
Strange's "Hindu Law," p. 137 [2nd edit.] ; Mitacshara, ch. II. sec. 2, p. 341,
ib. sec. 4, p. 346; Strange's "Manual of Hindoo Law," sec. 353 [2nd
edit.] Secondly, we are not bound by the
decree of the Civil Court of Madura, in 1847, which does not preclude
our right to ask this Court to determine the question of descent to the Zemindary, which, we con- tend,
was self-acquired property by Gowery Vallabha Taver. It never could have
been the intention of this Tribunal when the case came before it in the year
1844 (a),
while observing, that the point of division was the substantial question, to shut
out altogether the other material points at issue, ---------- succeeded the father E., and died without
issue, were entitled to the Zemindary, or whether the Plaintiff's title
as grandson of the common ancestor was preferable, The Pundits' opinion was, first, the
gift by D. to E. of the Zemindary was good, and that it descended to his son F., and, secondly, that as
F.
died without issue the Zemindary devolved upon his widows. (a) See Srimut Moottoo Vijaya
Raghanadha Gowery Vallabha Perria Woodia Taver v. Rany Anga Moottoo Natchier,
3. Moore's Ind. App. Cases, p. 294. ---------- [*584] raised in that case. We
contend, therefore, that even if the brothers were undivided as to their
ancestral property, the self-acqisition of one undivided brother dying without
male issue, descended to the widow; and after her death to daughters, in
preference to his brother and nephews. This rule of succession in Madras, is clear law, according
to the authorities already cited. Thirdly, the opinion of Pundits
taken in the suits, as to the right of succession, cannot be relied on. The
opinions which appear to have governed the Court below proceed on the
assumption that the Text Books they cite apply to the case they were called to
report upon, but the opinions unaccountably neglect to say if such authorities
are applicable to the particular facts stated. The daughter's right. to succeed
not being mentioned in the texts cited, the Pundits seem to consider that the
Appellant is not entitled. The cases of Myna Boyee v. Oottaram (a) and Abraham v. Abraham (b) are authorities showing
the value to be attached to the Pundits' opinions, and the necessity of the
appellate Court testing their accuracy, as well as that the questions put by
the Court correctly state the point at issue. Fourthly, as to the effect of the Razinamah executed by the widows
in 1830, being binding on them, we submit, that a native woman can never be
deemed sufficiently sui juris to be bound by her personal acts. Error and
ignorance of their rights as widows rendered the agreement invalid. Narsummal v. Lutchmana Naic (e), Chellummal v. Garrow (d), Rajunder Narain Rae v. Bijai Govind Sing (e). [*585] ---------- (a) 8 Moore's Ind. App. Cases, 400. (b) Ante, p. 195. (c) 2 Strange's Mad. Cases, 16, (d) lb., 159. (e) 2 Moore's Ind. App. Cases, 181. [*585] ---------- Lastly, we insist, that the refusal
of the Sudder Court to allow the Appellant to revive the appeal from the decree of
the Civil Court of Madura of the 27th of December, 1847, was arbitrary and contrary
to equity. Notwithstanding the proceedings by her in the suit, No. 10 of 1856,
the Appellant was entitled to appeal from that decree. She, as daughter, having
male issue, was heir to her father's estate, and like a remainder-man in
England the proper party to revive the suit. Lloyd v. Johnes (a), Osborne v. Usher (b) Macqueen's "Prac. of the House
of Lords," pp.. 242- 250. It must not be forgotten that her title only
accrued on the widow, Anga Moottoo Natchiar's death, Roopchund Tilukchund v. Phoolchund
Dhrurmchund (c), Loll Munnee Koonwaree v. Rajah Nemyeneram (d). The interest of the daughter in
the estate of her deceased father is similar to that of a widow, Hurrydoss
Dutt v. Sreemutty
Uppoornah Dossee (e) ; but even if it should be held that she was not entitled to appeal
from the decree- of the 27th of December, 1847, she certai.nly was not bound
by it, The Zemindar of Ramnad v. The Zemindar of Yettiapooram (f), and in that view that
decree could not be pleaded as res judicata, or, held to be a bar to her
original suit, No. 10 of 1856, which was instituted in due time after the death
of Anga Moottoo Natchiar. Sir Hugh Cairns, Q.C., Mr. Hobhouse, Q.C., and Mr. C. P. Phillips, for the Respondent. First, we insist, that Oya Taver and
Gowery Vallabha Tavr were undivided brothers, and that from Gowery, [*586] ---------- (a) 9 Ves., 57. (b) 6 Bro. P. C. Cases, 20. (c) 2 Borr. Born. Rep., 616. (d) 6 Ben. Sud. Dew. Rep., 255-7. (e) G Moore's Ind. App. Cases, 433. (f) 7 Moore's lad. App. Cases, 454-5. ---------- Vallabha Taver the Zemindary has come by lawful
descent to the Respondent, his nephew. The testamentary disposition. in his
favour by the Appellant's father is not material to our title. We deny the
alleged fact of the self-acquisition of the Zemindary by Gowery Valtabha
Taver.
It is true that there may be self-acquisition by a member of an undivided
family, but the Hindoo law presumes such acquisition for the joint benefit of
himself and his co-heirs. Strange's "Hindu Law," Vol. I., pp.
199-225, and the onus lies on a member of a Joint family claiming exclusive
right to prove that it was separately acquired, Dhurrn Pas Pandley v. Mussnmat Shama
Soondri Dibiah, (a), Gour Ghunder Rai v. Hurish Cliiwnder Rai (b), Nara- gunty Lutchmedavmah v. Vengama Naidoo (e),. W. H. Macnaghten's "Hindu Law,"
Vol. I., p. 54, and such presumption of joint partnership must be rebutted by
clear evience of a division of the joint family. What is considered as evidence
of division is fully treated by the text writers. Strange's "Hindu Law,' Vol.
L, pp. 225-7 [2nd edit.]; ib., Vol. U., p. 333. Mitacshara, ch. II., sec. 12, p1. 3
and 4; and the cases collected in Morley's Dig., Vol. I. p. 483. Here the
division is alleged to have taken place in the year 1792, but the evidence only
proves separate residence after the year 1804. The different stations and
duties and the health of the elder brother explain their separation, and the
distance between their residences was as little as was compatible with those
causes. The fact of the impartibility of the Zemindary and Polyaput of Padamattoor, coupled with the fact
of the infirmity of Oya Taver, satisfactorily account for their separate
residences. It has been decided that a [*587] ---------- (a) 3 Moore's Ind. App. Cases, 229. (b) 4 Ben. Sud. Dew. Rep., 162. (c) Ante, p. 66. [*587] ---------- grant to A., because he is the
descendant of B., does not create a self-acquisition in A. Strange's "Hindu Law,"
Vol. I., p. 216 [2nd edit.]. Here the lineage o Gowery Vallabha Taver to the
common ancestor, Shasavarna, was the cause of the grant by Government of the Zemindary to him. Oya Taver's
personal inca- pacity alone prevented his installation as Zemindar. The deed of settlement
did not limit the succession to the heirs of Gowery Vallabha Taver, or do more than confirm
the previous grant by Government to him. Now, self-acquisition cannot be the
property of one divided in family. It is never mentioned in the text books,
except as to property of an undivided member, and as part of the common stock.
"Hindu Law," Vol. I., pp. 120, 213, 215 [2nd edit.]. The Zemindary, it is admitted, is a
Raj and impartible, and held by a single person; if it had been otherwise, the
co-heirs would have shared in the Zemindary. Strange's "Hindu Law,"
Vol. I., p. 218 [2nd edit.]. And they mut have been parties to any alienation
of it. Strange's "Hindu Law," Vol. II., pp. 439, 441, 450 [2nd
edit.]. . It ertainly was not divisible from them, Strange's "Hindu Law,"
Vol. I., p. 260 [2nd edit.], where it is laid down that the issue of
self-acquired property inherits as far as great-grandson. Ib., pp. 209, 210.
Failing male issue, it goes to his undivided brothers and their issue. Strange's "Manual of Hindu
Law," sec. 351, p. 84 [2nd edit.]. If the descent of self-acquired
property differs from descent of the pro- perty of an undivided man, the
Appellant should prove that to be the law. The silence of the Books and
authorities on any such difference is strongly in the Respondent's favour. The
Pundits in the case submitted to them in 1837 have laid it down that there is
no such difference. The Sandayar [*588] case (a), relied upon by the
Appellant to show the descent to self-acquired property, does not apply, as
that case related to a divided family and ancestral estate. Transactions
'between co-parceners, in order to raise a rebuttal of the presumption of
non-division, must be in relation to the property enjoyable by them in common. Strange's "Hindu Law,"
Vol. I., pp. 227, 8, 9, 230 [2nd edit.]. Families living together, and carrying
on their transactions in common, constitute co-parcenary to which survivorship
attaches, lb., Vol. I., p. 120. Living separately does not per se constitute
division. The next point is the title of Anga
Moottoo Natchiar as a Hindoo widow to succeed. Women are generally incompetent to
inherit. It could only be to property of a man divided in family. Strange's "Hindu Law,"
Vol. I., p. 134; Mitacshara, ch. II., sec. I., pi. 39. A Hindoo widow has only
the right of enjoyment in her deceased husband 's property. It is laid down
that with respect to property derived by inheritance from her husband, a widow
is little more than tenant for life, and trustee for the ulterior heirs. Strange's "Manual of Hindu
Law," sec. 159, p. 38 [2nd edit.]. A Hindoo widow must, in a suit by her
for her late husband's realty, wherein she claims under his character as a
divided member of a Hindoo family, re-present the whole series of his heirs,
and a decree in that suit against her negativing such division is res j'u4icata,
and must bind them, because a contrary conclusion would, so long as the descent
passed through females, invoke thŽ possibility of endless litigation of such
fact of division. Next, we contend, that the death of Anga
Moottoo Natchiar in 1850, operated as an abatement of the suit, subject to revivor by
the next of kin of Gowery [*589] ---------- (a) Ante, p. 578. [*589] ---------- Vallabha Taver, and we insist, that
this Tribunal cannot now entertain an appeal from the decree of the civil Judge
of Madura made in 1847, or enter into any question of division, or
self-acquisition. First, as to the question of division. The suits of 1845, and
1849, were wholly abated. The Appellant was not a party thereto, and her claim
to immediate heirship to. her father on the death of Anga Moottoo Natchiar had never been
established, and has always been denied by the Respondents; secondly, as to the
ques- tion of self-acquisition, that fact was clearly not in issue in the suit,
No. 2, of 1845, nor dealt with by the decree of 1847. Further, with respect to
the decree of the Sudder Court refusing the Appellant to revive the appeal, we
submit it was perfectly regular, as the Sudder Court could not decide the question
of heirship. That was a question for the Provincial Court, and thither the
Appellant should have, in the first instance, gone. The Appellant's proper
course was pointed out to her in, the year 1850. The suit that the Appellant
ought to have brought, and which it as 'plain the Sudder Court intended her to bring,
was one in the nature of a Bill of revivor, or a Bill of supplement, limited to
the object of obtaining from the Provincial Court a declaration that she, as
the daughter of Gowery Vallabha Taver, had established her right to stand
in the place of Aga Moottoo Natchiar, but she perversely disregarded it,
and filed the suit, No. 10 of 1856, to establish her right and to which suit
she did not make the other claimant's parties Defendants. In Giffard v. Hort (a), it was held that a
decree made in a suit, with- out making parties whose rights were affected
thereby, [*590] ---------- (a) 1 Sch. & LeI., 386. [*590] ---------- was fraudulent and void as against
those parties. Here she attempted to deceive the Provincial Court, by alleging
an Order from the Sudder Court, directing H the suit, and by concealing her
previous claim as third daughter, and the agreement with her sisters, and
thereby only raised the issue of division, and did not properly raise the issue
of heirship. Having previously disregarded her
proper course pointed out in the year 1850, and twelve years having elapsed
since that date, the Respondent ought not to be restrained from setting up the Mad. Reg. of Limitations II,
of 1802, sec. 18, cl. 4, in bar to any proceedings the Appellant might
hereafter take to revive the appeal from the decree of 1847. She was barred by
laches and lapse of time from maintaining any original proceeding for the
recovery of the Zemindary. As to the appeal from the decree of
1859, we submit that that decree was right, because the decree of 1847, on the
fact of division, could not in fact be appealed by the heirs of Gowery
Vallabha Taver claiming after Anga Moottoo Natchiar, and as to any claim under the
alleged self-acquisition of the Zemindary, that was disposed of in the suit
of 1833, and by this Tribunal in 1844, or if not, it was raised in suit of
1845. Lastly, we insist, that the
Appellant not having taken the proper proceedings, is not entitled to revive or
continue the litigation commenced by Anga Moottoo Natchiar. Assuming, however, that
the decree of the Zillah Court in December, 1847, bound the party succeeding at the
death of the widow, Anga Moottoo Natchiar, the only remedy the Appellant,
claiming as a remainder-man, now has, is for this Court to remit the case to
the Sudder Court to determine the ori[*591]ginal appeal against the decree of
the Civil Court of Madura. This Tribunal, as a Court of final appeal, will not
adjudicate upon that point until a decree has been made by the Court below,
which alone can give it jurisdiction. The Solicitor-Genera in Reply Admitting that a Hindoo widow has
only a right of enjoyment in her husband's property, Strange's "Hindu Law,"
Vol. I. p. 124, ib. Vol. II. pp. 251-3 [2nd edit.], Daya-bhaga, ch. XI. sec. 1, pl 56,
and that the widow's litigation was ill conducted, yet her husband's heirs, who
succeed on her death, are not bound by her miscarriage. A remainder-man may
rectify error, or supply omissions, Lloyd v. Jones (a), where the point is
carefully considered by Lord Eldon. Here the Appellant, as daughter,
was the heir of her de- ceased father, Coleb. Dig. Vol. III. pp. 186, 489, 491,
498, Daya-bhaga, ch. XI. sec. -2, pi. 1, the Sandayar case (b), and had a
right to bring a new suit, and raise the proper question relating to the
succession of the Zemindary, namely, the separate acquisition of the Zemindary . by her father, which
fact was established in evidence, and, consequently by the Hindoo law, even if
they were an undivided family, neither his brother nor his nephew, could
succeed to the Zemindary, Macnaghten's "Hindu Law," Vol. II. p.
156. Judgment was reserved, and now
delivered by The Right Hon. the Lord Justice Turner. The subject of this appeal, and of
the long litigation which has preceded it, is the Zemindary of Shiva[*592] ---------- (a) 9 Vas., 60. (b) Ante, p. 578. [*592] ---------- guuga, in the District of Madura and Presidency of Madras. This Zemindary is said to have been
created in the year 1730, by the then Nabob of the Carnatic, in favour of one Shasavarna, on the extinction of
whose lineal descendants in 1801, it was treated as an escheat by the East
India Company, which had then become possessed of the sovereign rights of the Nabob of the Carnatic, and was granted by the
Madras Govern- ment to a person whom we shall distinguish by one of his many,
names, as Gowery Vallabha Taver. He had an elder brother named Oya Taver, who pre-
deceased him, dying in 1815. The Zemindar himself died on the 19th of July,
1829. He had had seven wives, of whom
three only survived him. Of the deceased wives, the first had a daughter (since
dead), who left a son named Vadooga Taver; the second had a daughter named Bootaka
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 Sowinia
Natchiar.
The two others were childless. Oya Taver, the brother, left three sons, of
whom the eldest was named Moottoo Vadooga. The Zaminary 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 [*593] 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 . 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 nephews was entitled to succeed
to it on the death of his uncle. If, on the other hand, the Zemindar, at the time of his
death, was separate in estate from his brother's family, the Zemindary ought to have passed to
one of his widows, and failing his widows to a daughter, or descendant of a
daughter, preferably to nephews; following the course of succession which the
law prescribes for separate estate. These propositions are incontestable; but Gowery
Vallablia Taver's widows and daughters have advanced a third, which is one of
the principal matters in question in this appeal. It is that, even if the late Zernindar continued to be
generally undivided in estate with his brother's family, this Zemindary was his self-acquired
and separate property, and as such was descendilile, like separate estate, to
his widows and daughters and their issue preferably to his nephews, though the
latter, as co-parceners, would be entitled to his share in the undivided
property. Upon this view of the law the question whether the family were
undivided or divided becomes immaterial. The material question of fact would be
whether the Zemindary was, to be treated as self-acquired separate property, or
as part of the common family stock. Whichever may have been the proper
rule of suc- cession, it is certain that, if not on the death of Gowery
Vallabha Taver, at least on the failure of his [*594] male issue, being
demonstrated by the birth of his posthumous daughter, his nephew, Moottoo
Vadooga
obtained possession of the Zemindary. He seems to have set up an
instrument which in the proceedings is called a Will. On the Appellant's side
this is treated as a forgery. The Respondent, denying the forgery, does not now
treat the document as a testamentary disposition, or as material to his title;
and it may, therefore, be dismissed from consideration. Moottoo Vadooga obtained possession with
the concurrence of various members of the family, and of Government and its
officers. He afterwards obtained from the then three surviving widows the Rainamah, or agreement. He
continued in possession without litigation, if not without dispute, until his
death, which took place on the 21st of July, 1831; and was then succeeded by
his eldest son, Bodha Gooroo Sawmy Taver. Soon after this event began the
litigation concerning this property, which has now continued upwards of thirty
years. 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 Moottoo 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. The suit, No. 4 of 1832, was brought
by Velli Natchiar, the daughter of Gowery Vallabha Taver by his first wife, on
behalf of her infant son, Mootto 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 [*595] 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 Vallabha Taver solely in consequence of
his relation- ship 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 preference to any descendant in the female line
from Gowery Vallabha Taver. The reply did not raise any distinct issue as to the
character of the family, whether divided or undivided, but insisted that the Zemindary was to be regarded as
the self- acquired and separate property of Gowery Vallabha Taver, and ought to pass by
virtue of the Arze to the Plaintiff. In 1833, two other suits were
instituted against the Zemindar in possession. Of these, that distinguished as No. 4
may be left out of, consideration, inasmuch as the Plaintiff in it rested his
title on an alleged adoption by Gowery Vallabha Taver, of which he failed to
give satisfactory proof. Such a title, if established, would of course have
been paramount to the claims of either the nephews or the widows. Suit 3, of 1833 is, however, the
most important, with reference to this appeal, of the three suits now under
consideration. It was brought by Anga Moottoo Natchiar, the fifth wife, and the
elder of the three widows of Gowery Vallabha Taver. he set up an adoption,
or quasi adoption, of Gowery Vallabha Taver, by the widow of the last Zemindar of the elder line, and
treated this as the consideration, or a principal consideration for the grant
of the Zemindary made to him by the East India Company, and she insisted
that Moottoo Vadooga Taver, on her husband's death, got possession of the Zemindary, of which she was [*596] the legal heiress, by
means of the forged Will. The defence to this suit, so far as it related to the
title of the Zemindar in possession, was substantially the same as that made to
the suit, No. 4 of 1832; but it also denied the alleged forgery of the Will,
and insisted on the Razenamah executed by Anga Moottoo Natchiar and the other widows to Moottoo
Vadooga Taver. In her reply, Anga Moottoo Natchiar did not raise any distinct issue as
to the division or non-division of the family. She submitted, as an issue of
fact, that the Zemindary had been acquired by the sole exertions and merits of her
husband; and as an issue of law, that what is acquired by a man, without
employment of his patrimony, shall not be inherited by his brothers and
co-heirs, but if he dies without male issue shall descend to his widows, his
daughters, and parents, before going to his brothers or remoter collaterals. These three suits were all dismissed
by the Provincial Court. We have not the decree or 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 1833, 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 [*597] 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 rule of succession to the
Zernindary, though self-acquired, would depend on the fact whether the brothers
had or had not divided their ancestral estate; that in the former ease it would
belong to the widow, and in the latter to the nephew; thirdly, that upon the
whole evidence the brothers must be taken to have divided their ancestral
property; and lastly, that the Plaintiff, Anga Moottoo Natchiar, was entitled to recover
the Zemindary, not having forfeited her rights by the execution of the Razenamah. Against this decree the Zemindar then in possession
appealed to Her Majesty in Council. The Order made on that appeal on the 19th
of June,
1844, was that the decree of the Sudder Court should be reversed, with
liberty to the Respondent, Anga Mootoo Taver, to bring a fresh suit,
notwithstanding the decree of the Provincial Court, at any time within three
years from the filing of that Order in the Sudder Dewanny Adawiut. The grounds on which
their Lordships who recommended this Order proceeded were, as appears from the
judgment delivered by Dr. Lushington, that the Sudder Court had miscarried in
deciding the question of division, which was not one of the points reserved in
the cause, nor was expressly raised upon the pleadings, but that the Respondent
ought to be allowed to remedy the [*598] omission in a new suit. And their Lordships added,
that though they could make no Order on the subject, it would be exceedingly
desirable that it should be well known to all those who were interested in the
property that the question of division or non-division appeared to be the only
point on which the main question of title to the property would ultimately
depend. On the 20th of August, 1845, Anga Moottoo
Natchiar
commenced her second suit in forma pauperis. In the interim Bodha Gooroo
Swamy Taver had died, and the Zemindary had passed to his brother, Gowery
Vallabha Taver, the father of the Respondent, and he with a younger brother were the
Defendants to the new suit. In her plaint the widow, after stating the pedigree
of the family, some of the former proceedings, and the desire of Velu
Natchiar,
the widow of the last Zemindar of the elder line, to make Gowery Vallabha Taver, the first of 'that name
whom we have mentioned', her successor, proceeds to allege, that with that
object she had caused him and his elder brother, Oya Taver, to make a partition of
their ancestral property as early as the year 1792. The Plaintiff then excilses
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 Naichiar, 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 alter- native case, that even if no partition of their ancestral
[*599] 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. In. his answer, the first and
principal Defendant recapitulated the several facts relied upon by Bodha
Gooroo
in the former suit as constituting his title. He insisted that by the decision
of the Judicial Committee of the Privy Council the contest was narrowed to the
issue whether the brothers were undivided in estate or not, and that the,
Plaintiff should have rested her claim on that issue. He contended that there
had been no partition. The points recorded in the suit are thud somewhat
vaguely stated:--"The Plaintiff to prove, by means of documents and
witnesses, that division took place in 1792. As' the defence is but a denial of
this circumstance, the Defendant cannot be called upon to establish the
negative side by direct proof. But the Defendant will have to prove the points
mentioned in paragraphs 2 to 5 of the answer; and he is required to use, if
possible, strong arguments against the points particularly spoken of by the
Plaintiff." A large body of evidence, is, in
fact, given by each side on the question of division or non-division. The case
was heard by the Civil Judge, Mr. Baynes, whose decree is dated the 27th of December, 1847. The effect of it
was, that the only question really open between the parties was that of
division or non- division; that the Plaintiff had failed to prove the partition
between Gowery Vallabha Taver and his [*600] brother, Oya Taver; and that her suit must
be dismissed with costs. Against this decree, on the 6th of
April, 1848, Anga Moottoo Natchiar appealed to the Sudder Court. The Defendant, Gowery
Vallabha,
then died, and his infant son, the present Respondent, came in, and on the 5th
of November, 1849, filed an answer to the appeal. Before the appeal was heard, and
on the 24th of June, 1850, Anga Moottoo Natchiar also died, and with her
death ended the second stage of this long litigation. On the death of Anga Moottoo
Natchiar
the Court seems to have issued a notice in the form ordinarily used on the
abatement of an appeal by the death of an Appellant, calling upon the heirs of
the deceased to come forward and prosecute the suit. This form of notice, it is
obvious, was not strictly applicable to a case like the present, where, upon
the death of a Hindoo widow, the right of action formerly vested in her
devolves not upon her heirs, but upon the next heirs of her husband; and to this
circumstance may be traced some of the confusion which is bservable in the
subsequent proceedings. Such as it was, however, the notice brought into the
field three sets of claimants. The first consisted of Bootaka 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 Moottoo Natchiar; but considering its
impartible nature, they expressed their willingness that it should be enjoyed
first by Bootaka Natchiar for her life, next by Kota Natchiar for her life, and lastly
by the Appellant. They treated Sowmia Natchiar, the daughter by the [*601] sixth wife, as excluded
from the succession by reason of her marriage with Bodha Gooroo, and of her being then a
childless widow. Sowmia Natchiar, however, came forward
by a separate petition, claiming to be heiress both to Anga Moottoo Natchiar
and the Zemindary, by virtue of an
instrument alleged to have been executed by Anga Mootoo Natchiar in her lifetime. 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
Mottoo Natchiar, his title as grandson was nevertheless preferable to that of
daughters, and that on the death of the widow he became entitled to the Zemindary. Counter-petitions were filed on
behalf of the Respondent, objecting to the revival of the appeal by any of
these claimants; and it is observable that he then insisted that they ought to
be compelled to bring fresh suits. for the trial of their alleged rights, in
order to give him the means of alleging and proving certain special matters of
defence against them, of which he would not have the benefit in the suit of Anga
Mootoo Natchiar. The Sudder Court, in dealing, with
these claims to prosecute the appeal, has made three different and inconsistent
orders. By the first, dated 21st of October, 1850, it held that none
of the claimants could prosecute the appeal, which it directed to be removed
from the file, but left any of them at liberty to bring a new action to enforce
their respective claims, provided it was commenced before the 30th of April, 1851. They all petitioned for a review of
this Order; counter-petitions were filed on behalf of the Re[*602]spondent; and the Court,
by its Order of the 1st of May, 1851, notwithstanding an. adverse opinion given by
its Pundits on the 7th of March preceding, reversed its former Order, and directed
the appeal to be replaced on the file, and the several claimants to be made
supplemental Appellants; resolving to hear the appeal, and, if it should be
sustained, to determine the mode in which their rights as against each other
and the Defendant should be tried. On the 19th of April, 1852, the Court,
apparently of its own mere motion on taking up the record of the appeal,
reversed this Order of the 1st of May, 1851, and ruled that the several
claimants could not be heard on the appeal, but might prosecute their
respective rights in the Court of first instance, which Court was to be guided
in the admission and hearing of their claims by the Regulations in force, and the
appeal was again removed from the file. Thereupon the Respondent shifted his
ground, and by a petition dated the 30th of June, 1852, objected to the last Order
and prayed for a review Of it. His contention then was, that the heirs next in
succession to Anga Mootoo Natchiar, according to that course of
succession, might have been admitted to carry on the appeal, and that it was a
hardship on him to have to litigate his 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. 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 [*603] 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. The Appellant's title in succession
to Anga Moottoo 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 Plaintiff, who has male
and female issue: whilst his first daughter, Bootaka, has no issue, and the
third daughter, Sowmia, is a widow." In the seventh, paragraph (though the
point is not taken so distinctly as in the suit of Anga Mootoo Natchiar) she claims the Zemindary as her father's
self-acquisition, irrespectively of the alleged partition with his brother, and
the question of division. The answer took a formal objection
to the suit, namely, that it was brought against the guardian of the infant Zemindar, and not, as it ought to
have been, against the infant jointly with his guardian: It also insisted on
the Regulation of Limitation and the decree of the 27th of December, 1847, as bars to the
Appellant's claim. It further impeached her title as the heir next in
succession to Auga Mootoo Natchiar in that line of succession, alleging
that there were descendants of Gowery Vallabha Taver through his elder
widows, and it again pleaded many of the facts put in issue in the suit of
1845, as constituting the title of the infant Zemindar. The estate being then in the custody
of the [*604] Court of Wards, the Collector was made a Defendant, and put in a
similar answer. Replies and rejoinders were filed; but without settling any
issues or taking any evidence in the cause. The Zillah Judge, Mr. Cotton, on the 25th, of August, 1859, dismissed the
suit, together with the suit, No. 4 of 1857, which had been instituted by Sowmia
Natchiar,
but with which we have no concern. His reasons for dismissing the Appellant's
suit were:--first, that upon the question of division she was concluded by the
decree of 1847, which he treated as a judgment in rem, made final by the
removal of the appeal from the file; and, secondly, that it was clear upon the
opinions of the Pundits, that the Zemindary, whether self- acquired or not,
could not descend to the widow, nor, a fortiori, to a daughter, except in the event
of the Zemindar having been of a divided family. The Appellant appealed from this
decision to the Sudder Court, praying that the suit might be remanded for
adjudication on the merits Her appeal was dismissed by a decree, dated the 5th
of November, 1859. The Sudder Court seems also to have considered that by the dropping of
the appeal on Anga Mootoo Natchiar's death the decree of 1847 had become
final, and, as such, was an effectual bar to the Appellant'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. 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, [*605] 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 reopening that decree to remove the
bar. 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
not a judgment in rem, because in a suit by A. for, the recovery of an estate
from B.
it has determined an issue raised concerning the status of a particular person
or family. It is clear that this particular judgment was nothing but a judgment
inter partes; and the only question which could properly arise concerning it in the
suit of 1856 was to what extent, as such, it was binding on the Appellant. Their Lordships also feel
constrained to observe that the various proceedings which have taken place
since Anga Mootoo Natchiar's death have signally failed to do justice between the
parties, or to dispose of the matters in dispute between them by anything
approaching to a regular course of trial and adjudication. When Anga Mootoo
Natchiar
died, the decree of 1847 was not a final decree. An appeal was pending against
it. Either it was binding upon those who in the event of her title being a good
one would succeed to the Zemindary, or it was not. Those persons were
obviously not her heirs, but the next heirs of her husband according to the
canon of Hindoo law, [*606] which defines the succession to separate estate. It ought
not, their Lordships conceive, to have been a difficult matter to ascertain the
persons answering to this description. If the decree were in its nature binding
on them, they, when ascertained, ought to have been allowed to prosecute the
appeal. If the decree were not binding upon them, it ought not to have been
treated as an obstacle to the full trial and adjudication of their rights in an
original suit. The Sudder Court, however, after making two other and inconsistent
Orders, referred the parties to an original suit; and yet a suit of that nature
when brought by the Appellant has been since disposed of against her summarily,
and without taking evidence, on the ground that the main and essential issue in
it was concluded by the decree of 1847. Therefore, she has fallen, so to speak,
between two stools. She has had neither the benefit of the appeal against the
decree of 1847, nor a fair trial of her right in a new suit. It has been ingeniously argued here
that for this result the Appellant is herself solely responsible; that the suit
which she ought to have brought, and which the Sudder Court intended her to
bring, was one in the nature of a Bill of revivor, or a Bill of revivor and
supplement, limited to the object of obtaining from 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 [*607] when it made its Order
of 185. 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. 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 effectual bar to the suit
which the Court itself had directed. Yet if there was ground for this
apprehension, in what a position had the Sudder Court placed the claimants It had
denied to them the power of prosecuting the appeal; it had thereby made final
that which was not in its nature final; and having thus tied their hands, it
sent them to wage a contest in a new suit in which, so bound, they could not
but fail. If, therefore, the decree of 1847, when final, was binding on the
claimants, the Sudder Court ought either to have dealt with the appeal on the
merits, or it ought to have declared the claimants at liberty to bring and
prosecute the new suit, notwithstanding that decree. In either view of the case,
therefore, there was a grave miscarriage of justice in the earliest Order of
the Sudder Court which is appealed against, viz. that of the 19th of April, 1852. It seems, however, to be necessary,
in order to determine the mode in which this appeal ought to be disposed of, to
consider the question whether the [*608] decree of 1847, if it had become
final in Anga Mootoo Natchiar's lifetime, would have bound those
claiming the Zemindary in succession to her. And their Lordships are of opinion
that, unless it could be shown that there had not been a fair trial of the
right in that suit--or, in other words, unless that decree could have been
successfully impeached on some special ground, it would have been an effectual
bar to any new suit in the Zillah Court by any person claiming in succession to
Auga Mootoo Natchiar. For assuming her to be entitled to the Zemindary at all, the whole estate
would for the time be vested in her, absolutely for some purposes, though, in
some respects, for a qualified interest; and until her death it could not be
ascertained who would be entitled to succeed. The same principle which has
prevailed in the Courts of this country as to tenants in tail representing the
inheritance, would seem to apply to the case of a Hindoo widow; and it is
obvious that there would be the greatest possible inconvenience in holding that
the succeeding heirs were not bound by a decree fairly and properly obtained
against the widow. But, then, assuming that the
succeeding heirs would be so bound, it was strongly insisted on the part of the
Respondent that this Committee can do no more than remit the cause, with
directions to the Sudder 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 [*609] 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. The substantial contest between the
Appellant and the Respondent is, as it was between Anga Moottoo 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. Second. If they were undivided, was
the Zemindary the self-acquired and separate property of Gowery Vallabha Taver? And if so-- Third. What is the course of
succession according to the Hindoo law of the south of India of such an
acquisition, where the family is in other respects an undivided family? Upon the first question their
Lordships are not prepared to disturb the finding of Mr. Baynes in the decree of 1847.
There are undoubtedly strong reasons for concluding that Gowery Vallabha
Taver and
his brother, after the acquisition by the former of the Zemindary, lived very much as if
they were separate. But this circumstance is not necessarily inconsistent with
the theory of non-division, if, as was likely, the family and undivided
property was very inconsiderable in comparison of the separately enjoyed Zemindary. And Anga Moottoo
Natchiar,
having admitted that the brothers had been joint in estate. and alleged a
partition [*610] at a particular place and. time, took upon herself the burden of proving
that partition; a burden from which it must be admitted she has not
satisfactorily relieved herself. Nor can their Lordships in considering this
question be unmindful of the presumption which arises from the lateness of the
period at which the allegation of division was first made; and from the silence
of the parties in the suits of 1832 and 1833, as well as in the suit of 1823,
which is mentioned in these proceedings, upon the subject of a partition which,
if it had ever taken place, must have been in the knowledge of all the members
of the family. The second question their Lordships
have no hesitation in answering in the affirmative. Every Court that has dealt
with the question has treated the Zemindary as the self-acquired property of Gowery
Vallabha Taver. Their Lordships conceive that this is the necessary conclusion from
the terms of the grant, and the circumstances in which it was made. The mere
fact that the grantee selected by Government was a remote kinsman of the Zeminday of the former line does
not, their Lordships apprehend, bring this case within the rule cited from Strange's "Hindu Law" by
Sir Hugh Cairns. The third question is one of nicety
and of some difficulty. The conclusion which the Courts in India have arrived at
upon it, is founded upon the opinion of the Pundits, and upon authorities
referred to by them. We shall presently examine 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 [*611] 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. 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, does not
carry the rights of widows to inherit beyond the cases in which their husbands
have died in a state of separation from their co-heirs, and leaving no male
issue; but it is to be observed that the text is propounded as a qualification
of the larger and more general proposition in favour of widows; and,
consequently, that in construing it, we have to consider what are the limits of
the qualification, rather than what are the limits of the right. Now, the very
terms of the text refer to eases in which the whole estate of the deceased has
been his separate property, and, indeed, the whole chapter in which the text is
contained, seems to deal only with cases in which the property in question has
been either wholly the common property of a united family, or wholly the
separate property of the deceased husband We find no trace in it of a case like
that before us, in which the property in question may have been in [*612] part the common property
of a united family, and in part the separate acquisition of the deceased; and
it cannot, we think, be assumed that because widows take the whole estates of
their husbands when they have been separated from, and not subsequently
re-united with, their co-heirs, and have died leaving no male issue, they
cannot, when their husbands have not been so separated, take any part of their
estates, although it may have been their husband's separate acquisition. The
text, therefore, does not seem to us to govern this case. There being then no positive text
governing the case before us, we must look to the principles of the law to
guide us in determining it. It is to be observed, in the first place, that the
general course of descent of separate property according to the Hindoo law is
not disputed. It is admitted that, according to that law, such property
descends to widows in default of male issue. It is upon the Respondent,
therefore, to make out that the property here in question, which was separately
acquired, does not descend according to the general course of the law. The way
in which this is attempted to be done, is by showing a general state of
co-parcenaryship as to the family property; but assuming this to have been
proved, or to be presumable from there being no disproof of the normal state of
co-parcenaryship, this proof, or absence of proof, cannot alter the case,
unless it be also the law that there cannot be property 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. Thai two
courses of descent may obtain [*613] 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." 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 io that issue down to the third generation.
Although, therefore, where there is male issue, the family property and the
separate property would not descend to different persons, they would descend in
a different way, and. with different consequences; the sons taking their father's
share in the ancestral property subject to all the rights of the co-parceners
in that property, and his self-acquired property free from those rights. The
course of succession. would not be the same for the family and the separate
estate; and it is clear, therefore, that, according to the Hindoo law, there
need not be unity of heirship. But to look more closely into the
Hindoo law. When property belonging in common to a united Hindoo family has
been divided, the divided shares go in the general course of descent of
separate property. Why, it may well be asked, should not the [*614] same rule apply to
property which from its first acquisition has always been separate We have seen
from the passage already quoted from Macnaghten' "Hindu Law,"
that where a residue is left undivided upon partition, what is divided goes as
separate property; what is undivided follows the family property; that which
remains as it was, devolves in the old line; that which is changed and becomes
separate, devolves in the new line. In other words, the law of succession
follows the nature of the property and of the interest in it. Again, there are principles on which
the rule of succession according to the Hindoo law appears to depend: the first
is that which determines the right to offer the funeral oblation, and the
degree in which the person making the offering is supposed to minister to the
spiritual benefit of the deceased; the other is an assumed right of
survivorship. Most of the authorities rest the uncontested right of widows to
inherit the estates of their husbands, dying separated from their kindred, on
the first of these principles (1 Strange's "Hindu Law," p. 135). But
some ancient authorities also invoke the other principle. Vrihaspati (3 Coleb. Dig. 458, tit. cccxcix;
see also Sir William Jones' paper cited in 2 Strange's "Hindu Law,"
p. 250) says: "Of him whose wife is not deceased half the body survives;
how should another take the property while half the body of the owner
lives?" Now, if the first of these principles were the only one involved,
it would not be easy to see why the widow's right of inheritance should 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 [*615] to a separate estate. But
it is perfectly intelligible that upon the principle of survivorsbip 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 partition
shows that as to the separately acquired property of one member of a united
family, the other members of that family have neither community of interest nor
unity of possession. The foundation, therefore, of a right to take such property
by survivorship fails; and there are no grounds for) postponing the widow's
right to any superior right of the co-parceners in the undivided property. Again, the theory which would
restrict the preference of the co-parceners over the widows to partible
property is not only, as is shown above, founded upon an intelligible
principle, but reconciles the law of inheritance with the law of partition.
These laws, as is observed by Sir Thomas Strange, are so intimately connected that
they may almost be said to be blended [*616] together; and it is surely not
consistent with this position that co-parceners should take separate property
by descent, when they take no interest in it upon partition. We may further
observe, that the view which we have thus indicated, of the Hindoo law is not
only, as we have shown, most consistent with its principles, but is also most
consistent with convenience. A case may be put of a Hindoo being
a member of a united family having common property, and being himself possessed
also of separate property. He may be desirous to provide for his widow and
daughters by means of the separate property, and yet wish to keep the family
estate undivided. But if the rule contended for were to prevail, he could not
effect his first object without insisting on the partition, which, ex
hypothesi,
he is anxious to avoid. The case standing thus upon
principle, we proceed to consider the opinions of the Pundits and the
authorities referred to by them. The case appears to have been
referred to the Pundits on several occasions. The first of these references was
made by the Zillah Court in 1833, in the suit No. 4 of 1832. The answer of the
Pundits bears date the 28th of October in that year. It is unnecessary,
however, to examine this particularly, since whatever is there laid down is
included in the fuller statements which will be next considered. These fuller statements were made by
the same Pundits in answer to references directed by the Sudder Court before making the
decree of the 17th of April, 1837 (a). The answers are dated the 28th of
December, 1836, and the 16th of January, 1837. On examining the reasons on which
the Pundits [*617] ---------- (a) See questions and answers, 3
Moore's bd. App. Cases, 282. [*617] ---------- rest their opinions, it s 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 Vrihispati 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. 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 more definitions of "obstructed" and
"non-obstructed heritage," and to have no bearing upon the relative
rights of those who take in default of male issue. If, indeed, the argument
which the Pundits 'have raised upon these passages be well founded, it would,
as it seems, prevent the widow from taking in any case. It remains, then, to consider the
authorities, on which the Pundits rely in support of their opinions. They consist of the text from the Mitacshara, to which we have
already so frequently referred, and of passages from Vrihaspati and several other
commentators on the Hindoo law. We have already intimated our opinion that the
text from the Mitacshara [*618] does not apply to this case, and as to the passages from
the Commentators they are all of equivocal import. They may, or may not, have
been intended to apply to a case like the present, and if there was nothing
more to be found upon the subject they might or might not be thought sufficient
to warrant the opinion which the Pundits have founded upon them; but these
passages seem to be the same passages, or passages similar to those, which were
brought forward before the time of the Mitacshara, to show that widows
were not entitled even where the property was wholly separate. We may, instance
the passage from Nareda. These authorities failed when contrasted with conflicting
passages in the works of other Commentators, of which the Pundits in this case
have taken no notice, to negative the right of the widow where the property was
wholly separate; and as they have failed to this extent, we cannot but think
that the Pundits in this case have gone much too far in bringing them forward
as uneontradieted authorities in favour of the opinion which they have formed that
the widows are not, in this ease, entitled to the separately acquired property.
It seems to us, too, that the decision in the Sandayar case (a)-a decision also founded
on the opinion of the Pundits of the Sudder Court is wholly at variance with the
opinion of the Pundits in the present case. Whether the Pundits in that case
were or were not right in the opinion, that the Zemindary became the separate
property of the uncle by the transaction between him and his nephew, it is
quite unnecessary to consider. All that is important to be considered is, that
holding the Zemindary to have become the separate [*619] property of the uncle,
they held that the widows, of the uncle's son became entitled to it, and that
the Court followed that opinion. The Pundits, in tine 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. 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 [text
corrected from original misprint] Sir William Jones, Vol. II, p. 250 [2nd Edit.], and
the opinion of the Pundit, Kistnamachary, (2 Strangs "Hindu Law,"
p. 231), the latter and material portion of which is not open to the objection
taken to the passage which precedes it by Messrs. Colebrooke and Dorm. In this state of things their
Lordships cannot but come to the conclusion that the balance of authority, as
well as the weight of principle, is in favour of the Appellant's contention. We proceed, then, to consider how
the Sudder Court ought to have dealt with this case after Anga Mottoo Natchiar's death, and we are of
opinion that [*620] that Court ought upon the applications made by the different parties
claiming to prosecute the appeal, to have determined which of the parties was
so entitled. We are of opinion, that Sowmia Natchiar and the grandson were
not so entitled, and that their claims, therefore, ought at once to have been
dismissed. The claims of the Appellant and her two sisters were founded on a
right common to them as against the Respondent; and we think that the Court
ought to have held them entitled to prosecute the appeal without prejudice to
their rights inter se, founded upon the agreement which appears to have been
entered into between them. It would then have been open to the Court to decide
the case upon the merits; and upon the merits we are of opinion, for the
reasons above given, that the Appellant and her sisters were well entitled to
the Zemindary, as against the Respondent. We have, of course, not failed to consider
the judgment of this Committee in 1844. Nor have we failed to observe that, in
a recent edition of his Treatise on the Hindoo Law of Inheritance, Mr. Strage,
one of the Judges of the Sudder Court of Madras, has expressed an opinion adverse to
the conclusion at which we have arrived. But we think it probable that the case
was not so fully discussed and examined in 1844, as it has been on the present
hearing; and, at all events, we do not feel ourselves justified in holding the
Appellant bound by the opinion which was then expressed; which, though of
course entitled to the greatest possible respect, was not necessary to the
decision then arrived at. And, as to the opinion expressed by Mr. Strange, it
seems to rest upon the opinions of the Pundits, and the proceedings of the
Court which we have now been called upon to review. [*621] If that opinion, had
been supported by a uniform course of decisions, we should perhaps have felt
some difficulty in contravening it; but as the case stands upon the
authorities, we feel bound to give effect 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 Natchiar 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 Moottoo 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 them, to apply at the Court
as they may be advised. We shall further recommend that the case be remitted to
the Sudder Court, with directions to carry these declarations into effect; but we
shall not recommend that any costs be given of the suit of 1856, or of this
appeal, or of any of the proceedings below. But any costs to which the
Appellant has been subjected must be refunded. <end> |