dedol-hf/india-case-legal-rag huggingface dataset:
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
O.S.  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.
    2. 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,
i.e.,  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 case(1), 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 I.A. 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 v.  Vadrevu Bulli  Ramaiya  (1);
Sivagnana  Tevar v. Periasami(2); Thakurani  Tara Kumari  v.
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) (1880) 5 C.L.R. 439.       (3) (1915) 42 I.A. 192,
(2) (1877) 5 I.A. 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 v. 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 v. Ram  Sundar  Mal(1),  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 I.A. 114.   (2) (1934) I.L.R.  56  All.  468
(P.C.).
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 v.  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) (1897)I.L.R. 20 Mad. 256 (P.C.).
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