dedol-hf/india-case-legal-rag huggingface dataset:
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; (iii)all 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  v.  Vadrevu  Bulli  Ramaiya   (5
C.L.R.439),  Sivagnana  Tear v. Periasami (5  I.A.  51)  and
Thakurani  Tara Kumari v. Chaturbhuj Narayan Singh (42  I.A.
192)distinguished.
Sartaj  Kuari's case (15 I.A. 51), Konammal v. Annadana  (55
I.A. 114), Collector of Gorakhpur v. Ram Sunder Mal  (I.L.R.
56  All. 468 P.C.), Sri Raja Lakshmi Devi Garu v.  Sri  Raja
Surya Narayana (I.L.R. 20 Mad. 256 P.C.) and Directors  etc.
of L.& S.W. Ry. Co. v. Richard Doddridge (L.R. 4 H. L.  610)
referred to.
The Judgment of the Madras High Court affirmed.
JUDGMENT:
CIVIL  APPELLATE JURISDICTION:Civil  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
C.J.  and Rajamannar J.) in Appeals Nos. 230, 300-302,  355,
356 and 413 of 1943.
G.S. Pathak (T. S. 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.
V.V. 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
1949.B. 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.
1951. 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, O.S.
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 Naicker(Died)
:
                           :
(1)
Bangaru Thirumali Bodi
              Naicker Zamindar 1849-1862(Died)
                         :
                         :
-----------------------------------------------------------
                 :                              :
                 :                              :
T. B. Kamaraja  Pandia Naicker              Vadamalai Raja
Zamindar1962-1888(Died15-12-1888)           Pandia Naicker
(Widow) Kamuluammal Zamindarini            (Died in 1901)
1888-1921(Died 13-1-1921)
                 :
                 :
          Meenakshi Ammal (Died)
                    :
      ---------------------------------------------------
            :               :                       :
            :               :                       :
Peria Thayi              Chainnathayi alias    Satpur
alias Muthumeenakshi     Veeralakshmi Ammal    Zamindar
Veerakamulu Ammal        (2nd Deft.) T.V.K.
(3rd defendant)          Kamaraja pandia
                         Naicker, late
                          Zamindar
(2)
                    Viswanatha Naicker
                     (Died before 1888)
                           :
                           :
                Kandasami Naicker plff in
             O.S. 16 of 1889(Died 20-2-1901)
                         :
                         :
  ------------------------------------------------------
      :                            :
:                            :
Viswanatha Kamaraja Pandia    T.V.K. Kamaraja (No.II)
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)     :
                                    :
                                    :
---------------------------------------------------
                  :                             :
                  :                             :
       T.B.S.S. Rajaya Pandiya           Chokkalingaswami
         Naicker (Plaintiff)               Naicker
(4)
               Kulasekara pandia Naicker(No.1)
               (Died after 10-5-1889 but before 1902)
                            :
:
-------------------------------------------
          :                       :
          :                       :
Kulasekara pandiya         Muthu Bangaruswami
Naicker (No. 2)                 Naicker (Died)
(Died before 1902)
     :                        :
     :                        :
V.Kulasekara 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    T.B. Kamaraja
Sundararau Pandiya     Naicker (Died)     Pandiya Naicker
Naicker (Died)
      :
      :
----------------------------------------------
     :                        :
     :                        :
T.B.M.S.K. 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 T.B.S.S.
Rajaya  Pandiya Naicker of the third,branch 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, T.B.M.S.K. 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,  O.S. 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, O.S. 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
O.S.  No. 6 of 1941 and of certain pannai  (home  farm)lands
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. T.B. Kamaraja Pandiya Naicker (Kamara-
ja I) who remained as zamindar till his death on 15th Decem-
ber. 1888. 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. 3,000. 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 O.S. No. 16 of 1889, i.e., 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. a5,000 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