Appeals Nos 29 to 33 89 and 90 of 1949
Appeals from the Judgment and Decree dated the 30th October 1945 of the High Court of Judicature at Madras Lionel Leach CJ and Rajamannar J in Appeals Nos 230 300 302 355 356 and 413 of 1943
GS Pathak T section Santhanam with him for the appellant in Civil Appeals Nos 28 and 29 of 1949 respondent No 1 in Civil Appeals Nos 30 32 and 33 of 1949 and respondent No 2 in Civil Appeal No 31 of 1949 for respondent No 3 in Civil Appeal No 31 of 1949 and for respondents Nos 1 and 2 in Civil Appeals Nos 89 and 90 of 1949
VV Raghavan for the appellant in Civil Appeals Nos 31 to 33 of 1949 respondent No 1 in Civil Appeals Nos 28 and 29 of 1949 and respondent No 2 in Civil Appeal No 30 of 1949B Somayya K Subramaniam and Alladi Kuppuswami with him for the appellant in Civil Appeals Nos 30 89 and 90 of 1949 respondent No 1 in Civil Appeal No 31 of 1949 and respondent No 2 in Civil Appeals Nos 28 29 32 and 33 of 1949
December 14
The Judgment of the Court was delivered by MAHAJAN J
244 MAHAJAN J
These eight appeals arise out of a common judgment of the High Court of Madras dated the 30th October 1945 given in seven appeals preferred to it against the judgment of the District Judge of Madura in four suits OS Nos 2 5 6 and 7 of 1941 all of which related to the zamindari of Bodinaickanur in the Madura district and the properties connected therewith
The appeals were originally before the Privy Council in England some by leave of the High Court and others by special leave and are now before us for disposal
The zamindari of Bodinaickanur is an ancient impartible estate in the district of Madura owned by a Hindu joint family
The genealogical tree of the family is as follows  245 Thirumalai Bodi Naicker Faisal Zamindar   Rajaya NaickerDied   1 Bangaru Thirumali Bodi Naicker Zamindar 1849 1862Died       T B Kamaraja Pandia Naicker Vadamalai Raja Zamindar1962 1888Died15 12 1888 Pandia Naicker Widow Kamuluammal Zamindarini Died in 1901 1888 1921Died 13 1 1921   Meenakshi Ammal Died        Peria Thayi Chainnathayi alias Satpur alias Muthumeenakshi Veeralakshmi Ammal Zamindar Veerakamulu Ammal 2nd Deft TVK 3rd defendant Kamaraja pandia Naicker late Zamindar 2 Viswanatha Naicker Died before 1888   Kandasami Naicker plff in OS 16 of 1889Died 20 2 1901       Viswanatha Kamaraja Pandia TVK Kamaraja NoII Naicker Died on 29 7 1918 Pandiaya Naicker Died 16 2 1941 Zamindar 1921 1941 Widow Chinnathayi alias Veeralakshmi Ammal 2nd Deft 3 Sundara Pandia Naicker Died in 1893             Viswanathaswami Thirumalai Seelaraja Seela Kamaraja Naicker Muthu Vijaya Naicker Bodi pandia died Dalapathi Died on Naicker Naicker Pandia 25 9 1931 Naicker Died        TBSS Rajaya Pandiya Chokkalingaswami Naicker Plaintiff Naicker 4 Kulasekara pandia NaickerNo1 Died after 10 5 1889 but before 1902       Kulasekara pandiya Muthu Bangaruswami Naicker No 2 Naicker Died Died before 1902     VKulasekara pandiya Naicker 1st Deft     Vadamalai Muthu Thirumalai Bodaya Kulasekara Sundararaja Pandiya Naicker Pandiya Naicker 5 Chokkalingasami Naicker Died after 10 5 1889 but before 1902          Tirumalai Bodaya Chhokkalingasami TB Kamaraja Sundararau Pandiya Naicker Died Pandiya Naicker Naicker Died       TBMSK
Pandiya Pandiya Raja Naicker Naicker 246 The zamindari was last held by Kamaraja II of the second branch
He died on 16th February 1941 without male issue but leaving him surviving a widow Chinnathayi alias Veeralakshmi Ammal and members of the family belonging to the third fourth and fifth branches
Succession to the zamindari is admittedly governed by the rule of lineal primogeniture modified by a family custom according to which the younger son by the senior wife is preferred to an eider son by junior wife
According to this custom TBSS Rajaya Pandiya Naicker of the thirdbranch was entitled to the zamindari after the death of Kamaraja II of the second branch
His claim was denied by the widow and by Kulasekara Pandiya Naicker of the fourth branch both of whom claimed the zamindari on different grounds
It was alleged by the widow that the zamindari was the separate and exclusive property of her husband and that being so she was entitled to it under the rule of Mitakshara applicable to devolu tion of separate property
Kulasekara of the fourth branch claimed it on the basis that Sundata Pandiya Naicker of the third branch who died in 1893 had separated from the family and had renounced his and his descendants  rights of succession to the zamindari and the third branch having thus lost all interest in the joint family zamindari he was the next person entitled to it by survivorship
On 28th April 1941 the revenue officer allowed the claim of Kulasekara and held that he was entitled to posses sion of the zamindari and the pannai lands home farm lands which were in the possession of Kamaraja II
As regards one of the villages comprised in the zamindari viz Boothipu ram the title of the widow was recognized
In pursuance of this order Kulasekara got into possession of the zamindari and the pannai lands after the death of Kamaraja II
Boot hipuram village remained in the possession of the widow
Dissatisfied with the order of the revenue officer the parties have instituted the suits out of which these appeals arise
247 On the 22nd June 1941 the widow Chinnathayi brought suit No 5 of 1941 for possession of the zamindari against Kulasekara of the fourth branch Rajaya and his uncle Seela bodi Naicker of the third branch TBMSK Pandiya Naicker and Kamaraja Pandiya Naicker of the fifth branch on the allegations set out above
On the 4th July 1941 she and her sister instituted suit No 2 of 1941 against the same set of defendants for cancellation of the deed of release that had been executed by her and her sister in favour of Kamaraja II on the 9th June 1934 in respect of the pannai lands that were in the possession of Kulasekara of the fourth branch under the order of the revenue officer
The third suit OS No 6 of 1941 was brought by Rajaya of the third branch on 27th August 1941 for posses sion of the zamindari Boothipuram village and the pannai lands against Kulasekara of the fourth branch and the two plaintiffs in suit No 2 of 1941 on the allegation that under the rule of lineal promogeniture he was the person next entitled to succeed to the zamindari after the death of Kamaraja II
The last suit OS No 7 of 1941 was instituted by Kulasekara of the fourth branch on 13th October 1941 against the widow and Rajaya his rival claimants to the zamindari for a declaration that he was the rightful heir and successor to the zamindari and was entitled to posses sion of Boothipuram village registered in the name of the widow
The zamindari of Bodinaickanur orginally consisted of fifteen villages mentioned in schedule A to the plaint in OS No 6 of 1941 and of certain pannai home farmlands and buildings
Tirumalai Bodi Naicker was the holder of this impartible raj
He was succeeded by his son Rajaya Naicker who died in 1849 leaving him surviving five sons Bangaru Tirumalai Bodi Naicker Viswanatha Naicker Sundara Pandiya
Naicker Kulasekara Pandiya Naicker and Chokkalin gaswami Naicker representing the first second third fourth and fifth branches respectively
Rajaya 248 Naicker was succeeded by his eldest son Bangaru Thirumalai Bodi Naicker who died on the 27th October 1862 and was succeeded by his son
TB Kamaraja Pandiya Naicker Kamara ja I who remained as zamindar till his death on 15th Decem ber
He had no son and on his death his widow Kamulu ammal got into possession of the estate
Proceedings for transfer were taken in the revenue court for registry of the zamindari and statements of the male members of the family belonging to the second third fourth and fifth branches and of the widow were recorded by the Deputy Collector
On 18th December 1888 the representatives of these branches stated that they had no objection to Kamuluammal enjoying the zamindari
On the 19th Kamuluammal asserted that her husband by his will had bequeathed the zamindari to her and had given her permission to make an adoption
On the same date the representatives of all branches of the family made a joint statement before the Deputy Collector
The relevant portion of it is in these terms  We four persons are his heirs to succeed and yet we agree to his widow Kamuluammal taking and enjoying the above said zamin and all other properties save the undermentioned lands set apart for our maintenance
Remission of the tirwah of the said lands allowed to us and of the tirwah of the lands registered in our names and enjoyed till now should be granted to us
 544 kulies of pannai lands under the Bangaruswami tank and the Marimoor tank were earmarked for the maintenance of the four branches
The widow made a statement on 20th ac cepting this arrangement
The Deputy Collector submitted his report on the 5th of January 1889 to the Collector upholding the will
The Collector in his turn also recorded the statements of the representatives of the several branch es of the family
Persons representing the third fourth and fifth branches adhered to the previous statements made by them but Kandasami of the second branch resiled from his earlier statement and asserted that the 249 family being divided he was the next heir to the zamindari
No notice was taken in these proceedings of Vadamalai the half brother of Kamaraja I Sundara Pandiya s statement before the Collector on the 9th January 1889 was in these terms  The wish of the family is that the widow should be in charge of the estate
I know nothing about the execution of the will
After the death of the widow the next heir should succeed
He is Kandaswami son of Viswanathaswami Naicker my eldest brother deceased   To the same effect were the statements of Kulasekara of the fourth branch and of Chokkalingaswami of the fifth branch
Kandaswami s statement was recorded on the 14th January 1889 and he said as follows  I am the next heir to the zamin the family being undivided
I must get it He repudiated his earlier statement on the ground that at that time he was ill and was drowned in sorrow and some rogue imitated his signature and put it on his previous statement
The revenue Officer ordered that the widow s name be registered as the next person entitled to the zamindari subject to any order that the civil court might make in the case
On the 1st May 1889 Kandasami filed O S No 16 of 1889 in the court of the Subordinate Judge of Madura im pleading the widow and the Collector as defendants for recovery of the entire zamindari as it then existed includ ing the villages of Boothipuram and Dombacheri and the pannai lands
He alleged that he as a member of the undivided Hindu family was entitled to succeed to the zamindari by survivor ship and in accordance with the established rule applicable to the devolution of this zamindari
Kamuluammal denied this claim and asserted that the zamindari was the separate property of her husband and she was entitled to it in pref erence to her husband s collaterals
She also based her claim on the alleged will of her husband
Sundara Pandiya of the third branch laid a claim to the zamindari and the 33 250 pannai lands on the ground that he as senior in age amongst the family members was entitled to them in preference to Rajaya on the rule of simple primogeniture
In view of the pending and threatened litigation the contesting parties thought it fit to end their disputes by a mutual settlement beneficial to all of them
Sundara Pandiya was the first to strike a bargain with the widow
On the 6th May 1890 a deed of release Exhibit P 17 was executed by him in favour of Kamuluammal incorporating the terms of the agreement
He managed to get from her in consideration of the release the village of Dombacheri absolutely for himself and his heirs
She bound herself to pay the peishkush and road cess of the said village without any concern about that on the part of Sundara Pandiya
He was also allowed to enjoy free of rent from generation to generation with power of alienation by way of gift sale etc
the one fourth share in the pannai lands under the irrigation of the Bangaruswami tank and the Marimoor tank and mentioned in the joint state ment made by the several branches of the family before the Deputy Collector in December 1888
Over and above this he received a cash payment of Rs 3000
With the exception of Dombacheri village and of the one fourth share in the said pannai lands all the other properties which belonged to Kamaraja I were to be held and enjoyed with all rights by Kamuluammal and her heirs with the power of alienation thereof by way of gift sale etc
absolutely
The fourth clause of the release is in these terms  Whatever rights over the said zamin properties and in all the other above mentioned properties the said Sundara Pandiya Naicker Avargal might possess he gives up such rights absolutely in favour of the said Kamuluammal Avargal and her heirs enabling them to enjoy them with the power of alienation thereof by way of gift sale etc
and whatever rights the said Kamuluammal might possess over the Dombach eri village and over the lands lying under the irrigation of the Bangarusami tank and the Marimoor tank and specified in the third column of the schedule hereto 251 which are given up to the aforesaid Sundarn Pandiya Naicker Avargal the said Kamuluammal Avargal hereby gives up such rights absolutely in favour of the said Pandiya Naicker Avargal and his heirs enabling them to enjoy them with the power of alienation thereof by way of gift sale etc
 Clause 5 runs thus  The said Kamuluammal and her heirs shall have no claim at all to the properties shown as belonging to Sundara Pandiya Naicker Avargal as aforesaid and the said Sundarn Pandiya Naicker Avargal and his heirs shall have no claim at all to the properties shown as belonging to the said Kamu luammal Avargal
 This deed was presented for registration on 10th May 1890
On the same day OS No 16 of 1889 ie Kandasami s suit was also compromised Exhibit P 18 contains the terms of that compromise
The following are its important provi sions  a The zamindari shall be enjoyed by Kamuluammal till her lifetime and she shall have no right to mortgage those properties in any way prejudicial to the plaintiff
b Kandasami and his heirs shall after the lifetime of Kamuluammal enjoy the zamindari excepting Dombacheri vil lage together with such rights if any as the first defendant Kamuluammal may have acquired under the deed of release executed between her and Sundarn Pandiya
c Boothipuram village shall be given to the plaintiff by Kamuluarnmal so that she may enjoy it with absolute rights
The entire peishkush and the road cess for the entire zamindari inclusive of the said village shall be paid by Kamuluammal
d The one fourth share in pannai lands situated on the irrigation areas of Bangaruswami tank and Marimoor tank shall be enjoyed by Kandaswami and his heirs with powers of alienation and with absolute rights
e Rs a5000 shall be paid to Kandasami by Kamuluam mal
252 f All the other pannai lands buildings and movables which belonged to the deceased Kamaraja Pandiya Naicker shall be held and enjoyed by Kamuluammal and her heirs with powers of alienation etc
and with absolute rights free from any future claim on the part of Kandaswami and his heirs
g The movable and immovable properties which may be acquired by Kamuluammal from out of the income of the za mindari shall belong to her with power of alienation etc
and shall go to her own heirs after her lifetime
h Kamuluammal shall not make an adoption
By the proceedings taken before the Collector and by the arrange ment made under Exhibits P 17 and P 18 the disputes that had then arisen in the family were settled
Kamuluammal however did not with good grace part with the properties which she had agreed to give to others under the arrange ment
The terms of the compromise had to be enforced against her by a number of suits and actions one by one
Be that as it may it is not denied now that the arrangement arrived at was eventually acted upon
Kandasami and his sons enjoyed the Boothipuram village and one fourth of the pannai lands in the two tanks absolutely
Sundara Pandiya and his descendants enjoyed Dombacheri and one fourth pan nailands the fourth and fifth branches obtained possession of one fourth share of the pannai lands under the two tanks
Kamuluammal secured revenue registration and remained in possession of the property down to the date of her death on lath January 1921
On her death the estate became vested in the possession of Kamaraja II the sole male representative of the second branch his father Kandasami and his brother Viswanathaswami having predeceased Kamuluam mal
He had been married to Chinnathayi Veeralakshmi one of the grand daughters of Kamuluammal during her lifetime
In the year 1925 the zamindar of Saptur the son of Kamulu s deceased daughter Meenakshi instituted 253 OS No 7 of 1925 against his sisters Chinnathayi and Periathayi and Kamaraja II for recovery of the pannai lands and buildings which had vested absolutely in Kamulu under the compromise decree on the allegation that these were held by her as a widow s estate and that he as the daughter s son was entitled to succeed to them
The suit was resisted by the two sisters on the plea that these lands were stridhanam properties of Kamulu and they as stridhanam heirs were entitled to them in preference to their brother
Kamaraja II contended that he was entitled to these lands and buildings as they formed an integral part of the zamind ari and were treated as such by Kamulu
This suit was dis missed and the plea of the two sisters was upheld
On 9th June 1934 both of them executed a deed of release in favour of Kamaraja II whereby they conceded his claim to the pannai lands and the buildings as being appurtenant to the zamindari in consideration of his agreeing to pay Rs 300 per mensem for life to each of them
On the death of Kamaraja II on the 16th February 1941 as already stated the second branch of the family became extinct and disputes arose in regard to the succession to the zamindari pannai lands buildings etc
and the village of Boothipuram
As above stated the claimants to the za mindari are three in number Rajaya of the third branch Kulasekara of the fourth branch and Chinnathayi alias Veeralakshmi the widow of the late zamindar
The District Court and on appeal the High Court have concurrently held that Rajaya was the person entitled to the zamindari
The District Court further held that the village of Boothipuram continued to be part of the zamin and decreed the same to the plaintiff Rajaya
As regards the pannai lands it was held that these had been conveyed absolutely to Kamulu under Exhibit P 18 and that her daughter s daughters Periathayi and Chinnathayi
succeeded to the same as her stridhanam heirs and that the release deed executed by them on the 9th June 1934 was invalid and inoperative to convey a valid title to Kamaraja 11
On appeal the High Court 254 confirmed the findings of the District Court as regards the pannai lands and buildings but reversed its findings as regards succession to Boothipuram
It held that Kandasami obtained Boothipuram village as his selfacquired property and that Chinnathayi was entitled to succeed to the same on the demise of her husband Kamaraja II
The various sets of parties have preferred the above appeals against the deci sion of the High Court to the extent it goes against them
The points for determination in these appeals are the following  1
Who out of the three claimants is entitled to the zamindari
Whether Boothipuram village is still an integral part of the zamindari or did it become the self acquired property of Kandasami by the compromise Exhibit P 18 3
Whether the pannai lands and buildings are part of the zamindari or became the stridhanam of Kamuluammal by the compromise decree and did not merge in the zamindari by the release deed of 1934
The question relating to the pannai lands and buildings can be shortly disposed of
Both the courts below have held that under the arrangement arrived at amongst the members of this family in the year 1890 these lands became the stridha nam of Kamuluammal and passed on to her stridhanam heirs ie her granddaughters Chinnathayi and Periathayi and that the deed of release executed by the two sisters in favour of Kamaraja II was vitiated by fraud and was not binding on Chinnathayi and the other heirs
This finding could not be seriously disputed by Mr Somayya appearing for Rajaya or by Mr Raghavan appearing for Kulasekara
It was faintly argued that the pannai lands were left with the widow in the same status in which she was allowed to retain the zamindari
This contention is contrary to the clear recitals of the compromise deed
Kamuluammal was a forceful personality and it seems clear that she agreed to accept the title of Kandasami as next entitled to the 255 estate and to give up her contention based on the will because she was given the zamindari for her lifetime and these pannai lands and buildings absolutely
Kandasami in whom the inheritance had vested was competent in view of the decision in Sartaj Kuari s case1 to alienate these lands in her favour and to vest her with absolute interest in them
It has therefore been rightly held that Kamulu became the absolute owner of the lands which in due course devolved on her grand daughters and ceased to be part of the joint family estate
Moreover it does not lie in the mouth of Sundarn Pandiya s descendants to challenge Kamuluammal s absolute title to these lands while retaining absolute title in the village of Dombacheri which under the same arrange ment Sundarn Pandiya got absolutely with rights of aliena tion
It was conceded that to the family arrangement ar rived at in the year 1890 and evidenced by the statements made before the Collector the recitals contained in the release deed Exhibit P 17 and those made in the compromise deed Exhibit P 18 all the members of the family were either parties or they accepted it and acted upon it
The result is that the widow Chinnathayi is entitled to the possession of those lands and no other person has any right to them whatever
As regards Boothipuram village the point is a simple one
Under the compromise Exhibit P 18 this village was left with Kandasami the person next entitled to the zamind ari after the death of Kamaraja I
It was separated from the zamindari estate which remained m possession and enjoyment of Kamuluammal for her lifetime
It was said in the compro mise that Kandasami would be the absolute owner of this village
It was argued by Mr Somayya and the same was the view taken by the trial Judge that Kandasami being the holder of an impartible estate could not by his own unilat eral act enlarge his estate and take a part of this estate in a different right than the right of a holder of an im partible zamindari and that he could not make it separate property by his own act
1 1888 15 IA 51
256 The High Court did not accept this view but reached the decision that all the branches of the family agreed to Kandasami having this village as his private property and that by common consent it was taken out of the zamindari and given to him absolutely and it was thus impressed with the character of separate property
On Kandasami s death it devolved on his son by succession and not by survivorship and Chinnathayi has a widow s estate in it after the death of her husband
In the High Court it was conceded that all the members of the family were aware of the terms of the family arrangement and were bound by them
In view of this concession it seems to us that it is not open to any of the parties to these appeals to deny at this stage the right of the widow to this village as an heir to her husband s es tate
The main fight in all these appeals centres round the title and heirship to the zamindari
The question four determination is whether the zamindari by some process became the separate property of Kandasami and that of his son Kamaraja II
If it became the separate property of Kamaraja II then Chinnathayi his widow would succeed to it on his death on the other hand if the zamindari re tained its character of joint family property in the hands of Kamaraja II then the question to decide is whether as a result of the arrangement made in 1890 Sundarn Pandiya relinquished his right to succeed to the family zamindari on the failure of nearest male heirs of Kandasami
If such relinquishment on his part is held satisfactorily estab lished then Kulasekara of the fourth branch would be enti tled to succeed to the zamindari otherwise Rajaya of Sun darn Pandiya s branch alone is entitled to it under the rule of succession applicable to the devolution of the zamindari
The claim made by the widow that the zamindari became by the arrangement of 1890 the separate property of Kandasami was disallowed by the High Court on the short ground that the documents Exhibits P 17 and P 18 read along with the various statements made in 1889 cannot be read as changing the character 257 of the estate from that of an impartible estate belonging to the joint family to an estate owned by Kandasami in his individual right
In the view of the High Court the only change effected by the arrangement so far as the estate was concerned was to defer the right of Kandasami to its posses sion as the next in succession until after the death of Kamuluammal
Kandasami could not himself make it his own private property and this was conceded by all
After hear ing Mr Pathak at considerable length we are in agreement with the High Court on this point
Mr Pathak argued that on the true construction of Exhibits P 17 and P 18 and on the evidence furnished by these two documents and the statements made antecedent to their execution and also in view of the subsequent conduct of the parties the correct inference to draw was that all the five branches of the family separated in the year 1890 and thus put an end to the joint family character of the zamindari that Kandasami was allotted the zamindary Boot hipuram village and one fourth pannai lands under the two tanks Sundara Pandiya was allotted Dombacheri village and one fourth of the pannai lands and that the fourth and fifth branches in lieu of their share were assigned one fourth of the pannai lands irrigated by the two tanks mentioned above and by these allotments the joint family was completely disrupted and the properties allotted to the different branches became their separate properties
Reference was made to the decisions of the Privy Council in Vadreun Ranganayakamma vs Vadrevu Bulli Ramaiya 1 Sivagnana Tevar vs Periasami2 Thakurani Tara Kumari vs Chaturbhuj Narayan Singh 3 and it was contended that the present case was analogous to the facts of those cases and should be decided on similar lines
We are of the opinion that the facts of none of those cases bear any close resem blance to the facts of the present case
The decision in 1 3 1915 42 IA 192 2 1877 5 IA 51 34 258 each one of those cases was given on their own peculiar set of circumstances
In the first case the owner of an impartible zamindari forming part of family property died leaving four sons and an infant grandson by his eldest son
During the minority of the grandson the four surviving sons executed a sanad which directed that the zamindari should be held by the grandson and that they should take an equal share of the inam lands and also manage the zamindari during the infancy of the grandson which on his attaining majority had to be handed over to him each confining himself to the share of the inam lands allotted to them
Certain family jewellery was also divided in a similar manner
This grandson then died leaving a son who also died without any issue but leaving a widow
Her title to the zamindari was denied by the descendants of the four sons of the zamindar
It was held that the sanad amounted to an agreement by which the joint family was divided and that on the death of the last holder his widow was entitled to the zamindari
It was observed in this case that having partitioned the lands the parties to the sanad proceeded to partition the jewels and this circumstance was inconsistent with the supposition that the document was executed with the intention of merely providing allotments in lieu of maintenance
It is clear from the facts of this case that the family owned other coparcenary properties besides the zamindari and the zamind ari in dispute fell to the lot of the grandson as his sepa rate property
There were other materials in the case indicating that there was complete separation between the members of this family
In the next case an impartible zamindari had devolved on the eldest of three undivided Hindu brothers
He exe cuted an instrument appointing his second brother to be zamindar
The instrument recited that if the widow of the deceased who was pregnant did not give birth to a son but a daughter he and his offspring would have no interest in the zamindari of 259 which his younger brother would be the sole zamindar who would also allow maintenance to the third brother
The widow gave birth to a daughter and the second brother took over the zamindari
The third brother also died without issue
On the death of the second brother his son succeeded and the zamindari devolved on him who died leaving a widow
The son of the eldest brother who had renounced the zamind ari sued to recover the estate against the widow
It was held that the instrument executed by the eldest brother was a renunciation by him for himself and his descendants of all interests in the zamindari either as the head or as a junior member of the joint family and consequently it became the separate property of the second brother and the widow was entitled to succeed to it in preference to the line of the eldest brother
The document on the interpretation of which this decision was given was in these terms  I and my offspring shall have no interest in the said palayapat but you alone shall be the zamindar and rule and enjoy the same allowing at the same time as per former agreement to the younger brother P Bodhagurusami Tevar who in the pedigree is called Chinnasami the village that had been assigned to him before
 These words were interpreted as amounting to a renuncia tion of all interest in the palayapat either as the head of or as a junior member of the joint family
The rights of the youngest brother Chinnasami were expressly reserved
It was said that the effect of the transaction was to make the particular estate the property of the two instead of the three brothers with of course all its incidents of im partibility and peculiar course of the descent and to do so as effectually as if in the case of an ordinary partition between the eider brother on the one hand and the two young er brothers on the other a particular property had fallen to the lot of the other two
Other clauses in the deed and the attending circumstances fully corroborated the construc tion placed upon it
260 In the last case the holder of an impartible estate of a joint Hindu family made a mokurari grant to his younger brother for maintenance
The grantee built a separate house divided from his brother s by a wall established therein a tulsi pinda and thakurbari and lived there sepa rately from his brother
He derrayed the marriage expenses of his daughter subsequently to the grant
Upon these facts it was held that there was a complete separation between the brothers and that the impartible estate consequently became separate property of the holder whose widow was entitled to succeed and have a widow s estate in the zamindari
It was observed that the evidence clearly proved that there had been complete separation between Thakur Ranjit Narayan Singh and his brother Bhupat Narayan Singh in worship food and estate
In our opinion the decision in this case must be limited to the facts therein disclosed and can have no general application to cases of impartible estates where the only right left to the junior members of the family is the right to take the estate by survivorship in case of failure of lineal heirs in the line of the last zamindari
The junior members can neither demand partition of the estate nor can they claim maintenance as of right except on the strength of custom nor are they entitled to possession or enjoyment of the estate
In our opinion division amongst the members of this family by allotment of properties was not possible as the only property known to belong to the family was the imparti ble zamindari of which partition could not be made or de manded
To establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention express or implied on the part of the junior members of the family to give up their chance of succeeding to the estate
In each case it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant s branch in the estate was determined so that it became the separate property of the last holder s branch
The test to be applied is whether the 261 facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an intention to impress upon the zamindari the character of separate property
Reference in this connection may be made to the decision of the Privy Council in Konammal vs Annadana 1
In that case on the death of a holder his eider son being feeble in mind his younger son succeeded to the zamindari by an arrangement with the adult members of the family in the year 1922
The estate then descended from father to son till 1914 when the junior branch became ex tinct and possession was taken by a senior member of the branch who claimed it by survivorship while the mother of the last holder claimed the estate as an heir to separate property and it was held that the setting aside of the eider son in 1822 did not deprive his descendants of their rights as members of the family to succeed on failure of the junior branch
In this case there was complete passing over of one branch of the family to succession vested in the next junior branch yet when that branch failed the mem bers of the senior branch were held yet to possess their right to succeed to the zamindari by survivorship
In Collector of Gorakhpur vs Ram Sundar Mal1 the claim of a Hindu to succeed by survivorship to an ancestral impartible estate was in issue in the suit
The family admittedly had been joint
It appeared that the common ancestor of the deceased holder and of the claimant had lived 200 years before the suit that for a long period there had been a complete separation in worship food and social intercourse between the claimant s branch of the family and that of the deceased holder and that upon the death of the holder the claimant had not disputed that the widow of the deceased was entitled to succeed
It was held that there was not to be implied from the circumstances 1 1928 55 IA 114
2 All 468 PC
262 stated above a renunuciation of the right to succeed so as to terminate the joint status for the purposes of that right
In Sri Raja Lakshmi Devi Garu vs Sri Raja Surya Nara yana Dhatrazu Bahadur Garu 1 the last zamindar died without any issue in 1888 and when his widow was in posses sion the suit was brought for possession by a male collat eral descended from a great grandfather common to him and to the last zamindar
The plaintiff claimed to establish his right as a member of an undivided family holding joint property against the widow who alleged that her husband had been the sole proprietor
In proof of this she relied on certain arrangements as having constituted partition viz that in 1816 two brothers then heirs agreed that the eider should hold possession and that the younger should accept a village appropriated to him for maintenance in satisfaction of his claim to inherit again that in 1866 the fourth zamindar compromised a suit brought against him by his sister for her inheritance on payment of a stipend to her having already in the claim of his brother granted to him two villages of the estate and by the compromise this was made conditional on the sister s claim being set tled again that in 1871 the fourth zamindar having died pending a suit brought against him to establish the fact of an adoption by him an arrangement was made for the mainte nance of his daughter and two widows who survived him the previous grant for maintenance of his brother holding good the adoption being admitted and the suit compromised
It was held that there was nothing in the arrangement which was inconsistent with the zamindari remaining part of the common family property and that the course of the inheritance had not been altered
The facts of this case were much stronger than those of the present one
The mere circumstance that by an arrangement a village out of the zamindari was given to one of the brothers was not inconsistent with the zamindari remaining part of the common family property
1 1897ILR 263 The document executed by the brother in the reported case was in these terms  I or my heirs shall not at any time make any claims against you or your heirs in respect of property movable or immovable or in respect of any transaction
As our father put you in possession of the Belgam zamindari I or my heirs shall not make any claim against you or your heirs in respect of the said zamindari
 It was observed by their Lordships that they did not find any sufficient evidence in the arrangement made by these documents of an intention to take the estate out of the category of joint or common family property so as to make it decendible otherwise than according to the rules of law applicable to such property that the arrangement was quite consistent with the continuance of that legal charac ter of the property that the eider brother was to enjoy the possession of the family estate and the younger brother accepted the appropriated village for maintenance in satis faction of such rights as he conceived he was entitled to and that it was nothing more in substance than an arrange ment for the mode of enjoyment of the family property which did not alter the course of descent
The evidence in the present case is trivial and incon clusive and from the documents above mentioned no intention can be deduced on the part of the junior members or on the part of any other member of the family of disrupting and dividing the family and renouncing their expectancy of succession
On the other hand the statements made in 1880 and 1800 by the members of the family clearly indicate that none of them had any intention of giving up his rights of heirship to the zamindari
There was no change of this frame of mind at any later stage of the family arrangement
Sundara Pandiya on the 9th January 1889 clearly stated that the wish of the family was that the widow should be in charge of the estate and after her the next heir should succeed and that it was Kandasami
Kandasami said that he was the next 264 heir the family being undivided
In the compromise this statement was reiterated
Their intention was to preserve their rights to take the zamindari if the line of Kandasami became extinct
Mr Pathak then put his ease from a different point of view
He urged that Kandasami had the power to alienate the zamindari or any part of it and by an act of alienation he could defeat the right of survivorship vesting in the other members to claim the zamindari on failure of his line
Similarly he said he could divide the impartible estate amongst the different members of the family and that is what he must be presumed to have done in the present case
The argument though plausible is fallacious
The right to bring about a partition of an impartible estate cannot be inferred from the power of alienation that the holder thereof may possess
In the case of an impartible estate the power to divide it amongst the members does not exist though the power in the holder to alienate it is there and from the existence of one power the other cannot be deduced as it is destructive of the very nature and character of the estate and makes it partible property capable of partition
It seems to us that Kandasami instead of intending to separate from the family was by his actions consolidating the family unity
By the family arrangement he no doubt successfully got himself declared as the next person enti tled to hold the joint family zamindari but he evinced no intention of converting it into his own separate property He preserved the estate for the family by saving it from the attack of the widow who wanted to take it under the will of her husband and antagonistically to the family
By the suit which he brought and which was eventually compromised he successfully avoided that attack on the family estate at the sacrifice of his right of enjoying it during the lifetime of the widow
He also by this arrangement safeguarded himself against the attack of Sundara Pandiya on his title as an heir
By his act the rule of descent of lineal primogeni ture prevailing in the family with regard to the zamindari was firmly 265 established
It would be unjust and uncharitable to conclude from the circumstances that the actions of Kandasami in 1890 were in any way hostile to the interests of the family
As he was throughout acting for the benefit of the family his actions were approved by all the members and they got a provision made for themselves for their maintenance in the arrangement
In the suit that he filed against Kamuluammal he in unambiguous terms alleged that he was claiming the zamindari as a member of the undivided Hindu family and it was in that status that he made the compromise with her and agreed to obtain possession of the estate after her death
After Kandasami s death  when the zamindari came by descent to Kamaraja II he also followed in the footsteps of his ancestor
During the period of his stewardship of the estate he tried to implement it by recovering the pannai lands which under the compromise had gone out of the estate to Kamulu absolutely
He was successful in his efforts though as a result of the decision in the present case his labours in this direction have proved futile as the release deed has been held to be vitiated by fraud
For the reasons given above we hold that there exist no satisfactory grounds for holding that the arrangement made in 1890 evidences a partition amongst the members of the joint family or proves an intention on the part of the junior members of the family to renounce their expectancy of succession by survivorship on failure of male lineal de scendants in the second branch of the family
The question whether there was separation among the members of the family is primarily a question of fact and the courts below having held that it is not proved there are no valid grounds for disturbing that finding
Chinnathayi s claim therefore to the zamindari must be held to have been rightly disallowed
As regards the claim of Kulasekara to the zamindari it has been disallowed in the two courts below on the ground that the deed of release Exhibit P 17 35 266 does not extinguish the right of survivorship of the third branch to take the estate on the second branch becoming extinct and that the document could not be read as evidenc ing an intention on the part of Sundara Pandiva to surrender the right of succession of his branch
It has been further held that the release was not executed in favour of the head of the family or in favour of all the members of the family in order to be operative as a valid relinquishment
There can be no doubt that a member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession but any such relinquish ment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family or in favour of the head of the family as represent ing all its members
Here the deed was executed in favour of the widow of a deceased copgrcener who as such was a stranger to the coparcenary the family being admittedly joint at the death of Kamaraja I
It was contended that in view of the attitude taken by the parties before the High Court that the deed of release and the compromise evidenced only one arrangement to which all the members were in reali ty parties it should be held that the surrender of his rights by Sundara Pandiya was made in favour of Kandasami the head of the family and it extinguished the rights of the third branch in the family zamindari
We think howev er that Kandasami in dealing with Sundara Pandiya was safeguarding his own right of succession against the attack personally directed against him and was successful in buying him off by agreeing to hand over to him a village
Both of them were claiming headship of the family on different grounds and both were asserting that the zamindari belonged to the joint family
In the compromise Kandasami was acting for his own benefit and was not making any bargain with Sundara Pandiya on behalf of the family
The family as such could not have been prejudiced in any way by the circum stance that succession went to one or the other
Be that as it may we think the decision 267 of this case can be made to rest on a more solid foundation than furnished by the considerations set out above
The whole emphasis of Mr Raghavan who represented Kulasekara was on the words of the deed contained in clause 5 set out above
Sundara Pandiya by this clause stipulated that he will have no right to the property shown as belonging to the widow
Sundara Pandiya was then agreeing that the widow should retain the zamindari absolutely his mind being affected by the will
Later on by the compromise made in Kandasami s suit what had been given absolutely to the widow was converted into a life estate with the excep tion of the pannai lands and Kandasami was acknowledged as the rightful heir
The recitals in the release deed there fore have to be read in the light of the terms and condi tions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the zamindari immediately as the seniormost member of the family but that he did not renounce his con tingent right of succeeding to it by survivorship if and when the occasion arose
It is well settled that general words of a release do not mean release of rights other than those then put up and have to be limited to the circum stances which were in the contemplation of the parties when it was executed vide Directors etc
of L  SW Ry
Co vs Richard Doddridge Blackmore 1
In that case it was said that general words in a release are limited to those things which were specially in the contemplation of the parties when the release was executed
This rule is good law in India as in England
The same rule has been stated in Norton on Deeds at page 206 2nd Ed thus  The general words of a release are limited always to that thing or those things which were specially in con templation of the parties at the time when the release was given though they were not mentioned in the recitals 1 268 In Hailsham s Edition of Halsbury s Laws of England Vol 7 at para 345 the rule has been stated in these terms  General words of release will be construed with refer ence to the surrounding circumstances and as being con trolled by recitals and context so as to give effect to the object and purpose of the document
A release will not be construed as applying to facts of which the creditor had no knowledge at the time when it was given In Chowdhry Chintaman Singh vs Mst
Nowlukho Kunwari1 where the document was drafted in almost the same terms as Exhibit P 17 it was said that though the words of the petition of compromise were capable of being read as if the executants were giving up all rights whatever in the taluka of Gungore yet in the opinion of their Lord ships the transaction amounted to no more than an agreement to waive the claim to a share in and to the consequent right to a partition of the taluka and there was no intention to change the character of the estate or the mode in which it was to descend
The parties in the year 1890 were not thinking of their future rights of survivorship at all
What Sundara Pandiya must be taken to have said by this release was I am giving up my present rights as a senior member in favour of Kandasami whom I recognize as the right ful heir to the zamindari as a member of the joint Hindu family Kandasami agreed to give him the village of Domb acheri in lieu of recognition of his title by him
It was not within the ken of the parties then as to what was to happen to the zamindari in case Kandasami s line died out
For the reasons given we are of the opinion that by the release Sundara Pandiya did not renounce his rights or the rights of his branch to succeed to the zamindari by survi vorship in case the line of Kandasami became extinct
We hold therefore that 1 1874 2 IA 263
269 Kulasekara s claim was rightly negatived in the courts below and that of Rajaya was rightly decreed
In the result all these appeals fail and are dismissed with costs
Appeals dismissed
Agent for the appellant in Civil Appeals Nos
28  29 of 1949 respondent No 1 in Civil Appeals Nos 30 32  33 of 1949 and respondent No 2 in Civil Appeal No 31 of 1949 and for Respondent No 3 m Civil Appeal No 31 of 1949 MSK Sastri
Agent for the appellant in Civil Appeals Nos 31 to 33 of 1949 respondent No 1 in Civil Appeals Nos 28 29 of 1949 and respondent No 2 in Civil Appeal No 30 of 1949 MSK Aiyangar
Agent for the appellant in Civil Appeals Nos 30 89 and 90 of 1949 respondent No 1 in Civil Appeal No 31 of 1949 and respondent No 2 in Civil Appeals Nos
28 29 32  33 of 1949 section Subrahmanyam
Agent for the respondents Nos 1 and 2 in Civil Appeals Nos 89 and 90 of 1949 VPK Nambiyar


Summary:
To establish that an impartible estate has ceased to be joint family property for purposes of succession it is necessary to prove an intention express or implied on the part of the junior members of the family to give up their chance of succeeding to the estate
In each case it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant s branch in the estate was determined so that it became the separate property of the last holder s branch
The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquishment of the right of succession and an inten tion to impress upon the zamindari the character of separate property
The right to bring about a partition of an impartible estate cannot be inferred from the power of alienation that the holder thereof may possess
In the case of an imparti ble estate the power to divide it amongst the members does not exist though the power in the holder to alienate it is there and from the existence of the one power the other cannot be deduced as it is destructive of the very nature and character of the estate and makes it partible property
A member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession but any such relinquishment must operate for the benefit of all the members and the surrender must be in favour of all the branches of the family as representing all its members
General words of release in a release deed do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contempla tion of the parties when it was executed
32 242 On the death of the holder of an impartible estate who represented the first branch his widow K got into possession claiming that the estate was the separate property of her husband and also under a will
Disputes arose between her and the members of the 2nd 3rd and 4th branches of the family and these were settled amicably
S who was the senior member of the 3rd branch obtained village D and one fourth of certain pannai lands as absolute owner and exe cuted a release deed on 6th May 1890 in these terms Whatever rights over the said zamin properties and in all other above mentioned properties S might possess he gives up such rights absolutely in favour of the said K and her heirs enabling them to enjoy them with the power of alienation thereof by gilt sale etc 
The said S and his heirs shall have no claim at all to the properties shown as belonging to K S who represented the 2nd branch and had instituted a suit against K compromised the suit on the 10th May 1890 under a deed which provided inter alia i that the zamindari shall be enjoyed by K till her lifetime and that KS and his heirs shall after the lifetime of K enjoy the zamindari except village D which was given to S ii village B and one fourth of certain pannai lands shall be given to KS absolutely iiiall other pannai lands build ings and movables which belonged to K s husband shall be enjoyed by K and her heirs absolutely On the death of K the estate became vested in Z the son of KS
On the death of Z without issue the second branch became extinct and disputes arose with regard to the ownership of the pannai lands and buildings village B and the zamindari between the widow of Z who was the grand daughter of K and the senior members of the 3rd and 4th branches Held i that as KS was competent to alienate the pannai lands and buildings in favour of K and vest her with absolute title and S had also agreed to give them to her absolutely K became the absolute owner of these lands and buildings and these ceased to be part of the joint estate and devolved on the grand daughters of K as her stridhana heirs
ii In view of the arrangement of 1890 it was not open to any of the parties to deny that the village B was separated from the zemindari and given to KS absolutely as his private property
The village consequently devolved on Z as separate property and on his death it devolved on his widow
iii The arrangement made in 1890 did not evidence a partition amongst the members of the joint family or prove an intention on the part of the junior members of the family to renounce their expectancy of succession by survivorship on failure of the male lineal descendants in the branch of KS
iv That the recitals in the release deed executed by S had to be read in the light of the compromise in the suit of KS and the 243 proper inference from both the documents read together was that S renounced only his right to succeed to the zemindari immediately as the seniormost member of the family and that he did not renounce his right or the right of his branch to succeed to the zemindari by survivorship if and when occa sion arose the senior member of the 3rd branch was there fore entitled to succeed to the zemindari in preference to the senior member of the 4th branch and the widow of Z Vadrevu Ranganayakamma vs Vadrevu Bulli Ramaiya 5 CLR439 Sivagnana Tear vs Periasami 5 IA 51 and Thakurani Tara Kumari vs Chaturbhuj Narayan Singh 42 IA 192distinguished
Sartaj Kuari s case 15 IA 51 Konammal vs Annadana 55 IA 114 Collector of Gorakhpur vs Ram Sunder Mal ILR 56 All 468 PC Sri Raja Lakshmi Devi Garu vs Sri Raja Surya Narayana ILR PC and Directors etc
of L SW Ry
Co vs Richard Doddridge referred to
The Judgment of the Madras High Court affirmed