Madras High Court
Navaneethakrishna Marudappa ... vs The Collector And Agent To The ... on 2 April, 1935
Equivalent citations: 160 Ind Cas 647, (1935) 69 MLJ 632
Author: Ramesam
JUDGMENT
Ramesam, J.
1. These appeals arise out of three suits filed by different claimants to recover possession of the impartible Zamindari of Uttumalai in the Tinnevelly District and for further reliefs. It will be convenient to set forth briefly the earlier history of the Zamindari as far as it is relevant for our purpose and the disputes regarding it which culminate in the filing of these three suits. The last adult male Zamindar who enjoyed the Zamindari under an undisputed title was Hirudhalaiya Marudappa Tevar. He succeeded his father Navaneethakrishna in 1850 when he was a minor and his mother Perianayaki was managing the Zamindari until he attained majority in 1857 when he began to manage the Zamindari himself. In 1864 he married two wives on the same day (1) Annapurni Nachiar and (2) Meenakshisundara Nachiar. Very soon after the marriage misunderstandings arose between him and Annapurni. He discarded her. Later on he claimed that he had actually divorced her but this allegation was found against him by the Civil Courts in O.S. No. 17 of 1889. In 1888 Hirudhalaiya was seriously ill. He intended to make an adoption and chose a boy but the boy died before being adopted. In March, 1889, Annapurni with the help of her influential brothers made a forcible entry into the residence of the Zamindar and established herself in an out-house and began to harass him till his death. Meanwhile he found another boy. By July, 1891 he had been suffering from diabetes and carbuncle. On the 24th July, he had informed the Head Assistant Collector that he was going to make an adoption on the 26th. On the 25th similar letters were addressed to the District Collector and the Tahsildar. On the 26th he adopted the infant; he addressed letters to the Collector, Head Assistant Collector and the Tahsildar informing them of the adoption (Nos. 88, 89 and 90). On the first August he writes another letter to the Collector in which he desires that the Zamindari may be kept under Government management, that his minor adopted boy should be looked after by Government until he attains majority and that his wife Meenakshisundara should be the boy's personal guardian. Similar letters were addressed on the same day to the Head Assistant Collector and the Tahsildar (Nos. 92, 93 and 94). In another set of letters written on the same day (Nos. 95, 96 and 97) to the Collector, Head Assistant Collector and the Tahsildar he complains that his wife Annapuranam was intending to cause disturbance during his funeral ceremonies and requests Government to take steps to compel her to remain within her residence and that no disturbance is caused either by her or by her brothers and prays that necessary orders should be issued to the Magistrates and the Police Officials accordingly. In another letter written on the same day he requests that certain charities should be maintained during the period of minority of the adopted son and that thereafter the income may be given to a Swamiar for conducting the charities. A similar letter was addressed to the Head Assistant Collector (No. 99) regarding certain temples. This refers to the scale of expenses to be incurred during the minority of the adopted son and even after the minor attains age. Then we have got two letters written on the 4th August (Nos. 100 and 101) and another on the 5th August (No. 102). On the 6th August there is another letter (No. 103). In this he says that his wife Annapurni and her brothers came to his place with a big crowd of armed men with a view to make another adoption to the Zamindar. Then he says that she is not entitled to make an adoption because he and his other wife Meenakshisundaram have made an adoption and that she is making such attempts with a view to set up an adoption and bring a false suit thereafter. The office copies of the letters set forth above are all contained in a book (Ex. XXII). Hirudhalaiya died on the 12th August. The Court of Wards immediately took up the management of the Zamindari. The adopted boy died in December, 1891. Immediately there was a scramble for possession between the two widows Annapurani and Meenakshisundaram. The Collector of Tinnevelly filed an interpleader suit (O.S. No. 15 of 1892). It was decided in favour of Meenakshisundaram by the District Court in 1893. There was an appeal to the High Court which confirmed the District Judge's judgment. The judgment of the High Court is reported in Annapurni Nachiar v. The Collector of Tinnevelly (1895) I.L.R. 18 Mad. 277 : 5 M.L.J. 21. There was an appeal by Annapurni to His Majesty in Council. That appeal was disposed of in July, 1899, and the Judgment is reported in Annapurni Nachiar v. Forbes (1899) L.R. 26 I.A. 246 : I.L.R. 23 Mad. 1 : 9 M.L.J. 209 (P.c.). Some time after the decision of the High Court, that is, in December, 1898, possession of the Zamindari was delivered to Meenakshisundaram but by that time she had incurred considerable debts as she had to conduct the litigation unaided. She continued in possession of the Zamindari up to 1901. Finding herself unable to extricate herself from her indebtedness she applied to the Government to place the Zamindari under the Court of Wards. The Government accordingly authorised the Court of Wards to take charge of the estate (Ex. XXVIII). By 1908 most of the pressing liabilities were discharged. In December, 1908, she requested that the Zamindari may be restored to her but this request was refused in March, 1909 (Exs. XXXII and XXXIII). She repeated this request several times but always unsuccessfully for example Exs. IX-a, XXX and XXXI in 1913. At about this time she seems to have entertained the idea of adoption. Ex. RR dated 22nd September, 1908, addressed from Mylapore (in Madras) to her younger sister's husband Chiranjivi Seeniaiyah refers to some adoption thus:
As regards the matter of adoption everything will happen according to-the will of God.
2. In 1914 the adoption of her brother's son Balasubramania Pandia Thalavar seems to have been suggested to her. In the letters he is referred to as Durai Raj and he was to be brought down to Madras. In 1916, her desire to make an adoption and execute a will seems to have been brought to the notice of the Court of Wards and it passed a resolution saying that the question would be considered on receipt of a formal communication through the Collector (vide Ex. VII). She actually made an adoption on the 26th January, 1920, without previously obtaining the permission of the Court of Wards and Ex. A is the deed of adoption. In this deed she recites the fact of the first adoption and then states that her husband gave her permission to adopt in case the adopted boy died. This is the first occasion on which she states in writing that her husband gave her permission to adopt in case the first adopted boy died. J She also executed a will (Ex. QQ) on the same day. The manager of the estate (a Deputy Collector) communicated the act of adoption and the execution of the will to the Court o Wards (Ex. B-1). The Rani also sent a communication to ' the Collector (Ex. C-1). The will purported to dispose of four items of property (1) jewels and silver vessels, (2) surplus funds saved by the Court of Wards, (3) home-farm lands, sites, etc. and (4) Surandai Mittah. The Collector reported the adoption (Ex. D) and proceeded to make further enquiries about the adopted boy. The Rani's brother Subbiah Thevar sent a petition to the Court of Wards saying that the Rani had no authority to make a second adoption but she pretended to have adopted a boy '10 days ago' and he prayed to the Court of Wards to restrain the Rani from making the adoption (vide Ex. XXVII dated 4th February, 1920). He repeated the same prayer in another petition, Ex. XXVI dated 7th February, 1920. Under the directions of the Court of Wards certain enquiries were made by the manager and by the Collector Mr. Cox. Mr. Cox finally reported that the Rani had no authority from her husband to make a second adoption in the event of the first adopted son dying. The Collector finally intimated to her that the Court of Wards is prepared to confirm her will only as regards the jewels and silver vessels, but not as to the savings and if a new will was executed on the above lines it would be confirmed by the Court of Wards. (Ex. UUU dated 18th July, 1920) and by Ex. VI dated the 8th October, 1920, the Collector again informed her 'that the Court of Wards is not prepared at present to confirm the adoption made by you. This will however not prevent the Court from confirming the adoption later on if it should appear that the want of the Court's confirmation is the only thing which rendered the adoption illegal.' She executed a second will Ex. OO dated the 9th May, 1921, under which she bequeathed the amount of "Rs. 89,000 which remain in the shape of Government pro-note and war bonds and interest thereon, and the jewels, vessels, lace cloth, etc., and other samans which I may give to my adopted son from time to time". This will was sent with the letter Ex. PP dated the 9th May, 1921, for confirmation by the Court of Wards. We next have got a letter dated the 26th June (Ex. HH) purporting to be written by the Rani to the Government in which she requested 'that all my moveables, jewels, vessels, cloths, etc., which belong to me solely and which I have left in charge of my adopted son may be allowed to be retained with him for his personal and other use as per my will' and that the savings also should be handed over to him. Two days after, she addressed another letter (Ex. KK) to the Collector. On the 4th July, 1921 she died. This fact was reported on the same day to the Collector by Ex. LL by the natural father of the adopted boy with a request that the Court of Wards should continue to manage the estate.
3. Three suits were filed for the recovery of the Zamindari. The earliest suit was filed by Balasubramania Pandia Thalavar on the 29th September, 1921. He is a son of Gnanapurani Thai a daughter of Navanitha Krishna. Gnanapurani's mother was Gomati Muthu Nachiar. Thus Gnanapurani is a half-sister of Hirudhalaiya and the plaintiff claims to be the father's sister's son of the first adopted boy who died in 1891. This suit was numbered as O.S. No. 1 of 1922 of the District Court of Tinnevelly. The next suit was filed by the second adopted son on the 4th November, 1921. This was originally numbered as O.S. No. 103 of 1921 of the Sub-Court, Tinnevelly but was afterwards transferred to the District Court and re-numbered there as O.S. No. 2 of 1922. The third suit was filed by Subbiah Thevar brother of Meenakshisundara on the 30th March, 1933 in the Sub-Court of Tinnevelly and was numbered as 34 of 1922. This was also transferred to the Tinnevelly District Court and re-numbered there as O.S. No. 3 of 1922. Thus all the three suits were tried together by the District Judge of Tinnevelly. He dismissed O.S. Nos. 1 and 2 and decreed O.S. No. 3. The defeated parties filed appeals to the High Court. A.S. No. 428 of 1930 is the appeal of the adopted son against the decree in O.S. No. 2 dismissing his suit and A.S. No. 429 of 1930 is his appeal in O.S. No. 3 decreeing Subbiah Thevar's suit. These two appeals raise substantially the same question though two appeals had to be formally filed. A.S. No. 159 of 1929 is the appeal of Balasubramania against the decree in O.S. No. 1 dismissing his suit and A.S. No. 411 of 1930 is his appeal against the decree in O.S. No. 3. These two appeals are substantially the same though two appeals had to be formally filed. A.S. No. 205 of 1929 is the appeal of Rani Annapurni Nachiar against the decree in O.S. No. 1. Thus we have got five appeals pending in this Court but they are substantially, three appeals by three claimants. Subbiah Thevar is the respondent in all these appeals. The following table exhibits for convenience the suits from which these appeals are filed and the respective appellants.
Appeal No. Appellant. O.S. No.
A.S. No. 428 of 1930 Adopted son 2 of 1922 " 429 of 1930 Do. 3 of 1922 A.S. No. 159 of 1929 Balasubramania 1 of 1922 " 411 of 1930 Do. 3 of 1922 A.S. No. 205 of 1929 Annapurni 1 of 1922.
4. It will be convenient now to take up the appeals of the adopted son, namely, 428 and 429 of 1930. The substantial question to be decided in these appeals is whether the appellant was validly adopted. The fact of adoption was found in favour of the plaintiff-appellant by the District Judge and that question has not been raised before us again. The third issue raises the question whether Meenakshisundarahad express authority from her husband to adopt. The fourth issue raises the question whether she had implied authority. The seventh issue raises (he question whether the adoption is invalid for want of sanction by the Court of Wards or can be subsequently confirmed by them. All these issues relate to the adoption. The issues 8 to 11 relate to the will and its effect on the jewels and savings. Taking up the question of authority, the learned District Judge found against the alleged express and implied authority. [His Lordship discussed the evidence and concluded:] I agree therefore with the finding of the District Judge on the third issue that there was no express authority to make a second adoption.
5. I now come to the fourth issue. On this issue the argument of the appellant may be stated thus. It has been held by the Privy Council in Suryanarayana v. Venkataramana (1906) L.R. 33 I.R. I.A. 145 : I.I.R. 29 Mad. 382 : 16 M.L.J. 276 276 (P.C.) that an authority to adopt given in very general terms should not be narrowly construed so as to limit the authority to one adoption. When an authority is given in general terms, it may be reasonably construed to support several adoptions one after another as each adopted boy dies. In the course of the judgment it was observed by the Privy Council that one should not be astute to defeat a genuine adoption. This is no doubt true but in my opinion all this reasoning relates only to construing an authority which has been given. In this case there is no authority at all. All that we have is an actual adoption by the Zamindar in association with Meenakshisundara. No authority was ever given for us to construe. To imply an authority under such circumstances would be analogous to making a will for a man on the ground that if he had thought of it he would have made a will and a will is highly desirable. I do not think that such a process is permissible. Letters Nos. 92, 95 and 98 in Ex. XXII show that the Zamindar has never contemplated the possibility of the adopted boy dying young but expected him to live until after he attained majority and to enjoy the Zamindari. His mind did not look beyond that stage. If he had adverted to the possibility of the boy living for some time and then dying without having been married, it is true that one may speculate as likely that he would have desired his widow if she survived the boy to adopt' a son. But there is nothing in the whole record of this case to show that his mind ever adverted to that possibility. It is true that an authority to adopt need not be express in the sense that it should be expressed is so many words. One may infer it from signs or from other unambiguous conduct. Mandavilli Seetharamamma v. Attivilli Suryanarayana (1926) I.L.R. 49 Mad. 969 : 51 M.L.J. 466. To imply an authority from circumstances of the kind in Mandavilli Seetharamamma Attivilli Suryanarayana (1868) 12 M.I.A. 397 is different from inferring an authority merely from circumstances showing that the Zamindar would have given such an authority if he considered all the contingencies that might arise. I do not think that this kind of implication by law, which is not an inference of fact is permissible. To do so would be to assimilate the law in the Madras Presidency as regards the authority to adopt to that in Bombay. In Bombay unless a husband prohibited an adoption the authority to the widow is always presumed or in other words no express authority of the husband is necessary. But the law in Madras is different. In Collector of Madura v. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 a case relating to the Ramnad Zamindari from the same part of the country as this case - the Privy Council considered so early as 1868 the question whether a widow can adopt a son to her husband without express authority. They held that where the authority of the husband is wanting she can adopt only if authorised by the sapindas. To imply authority wherever it is desirable or to infer an authority always from the fact of a prior adoption would be practically to assimilate the law in Madras to that in Bombay. The appellant's contention practically amounts to laying down a rule of law that wherever a Zamindar adopts a son and afterwards the boy dies his widow has implied authority to adopt another boy. I do not think that we are justified in laying down such a rule of law in Madras. I therefore agree with the learned District Judge in finding against the implied authority.
6. The other issue, namely, the seventh issue which relates to authority need not detain us long for on the findings on the third and fourth issues the discussion on it is merely academic but it will have a bearing on the next point to be considered, namely, the validity of the will. So from that point of view I will just notice it. At the time of the adoption and the execution of the will the Court of Wards Act in force in this Presidency was Madras Act I of 1902 which repealed an older regulation relating to the same matter - Regulation V of 1804. The learned District Judge thought that as the estate was taken up in 1901 at a time when the old Regulation of 1804 as amended by Madras Act IV of 1899 was in force the validity of all the acts of the Rani must be determined with reference to that old regulation as amended. The old regulation enables the Court of Wards to take the properties only from incapacitated proprietors. But the amending Act of 1899 enabled proprietors to request the Government to declare them incapacitated on such request and the Court of Wards thereafter to assume superintendence of their property. As a matter of fact in this case the Government considered it unnecessary to declare the Zamindarini incapacitated under Section 2 of (Madras) Act IV of 1899 but authorised the Court of Wards to assume management of the estate under Section 2, Regulation V of 1804 and the amending Act of 1899 made no difference. But whatever was the provision of law under which the Court of Wards took up the management, the Act which was in force at the time of the adoption was the Act of 1902 and the Advocates on both sides agree before us that the validity of her action, should be judged with reference to the Act of 1902 and not with reference to the earlier regulation of 1804. Section 34, Clause (c) says:
A ward shall not be competent to adopt or give a written or verbal permission to adopt without the consent of the Court. Provided first, that the Court shall not withhold its consent under Clause (c) if the adoption is not contrary to the personal or special law applicable to the ward, and does not appear likely to cause pecuniary embarrassment to the property, or to lower the influence or respectability of the family in public estimation. Provided secondly, that the Court may confirm an adoption made without its previous consent.
7. I have quoted only that portion of the section which is relevant to the question of adoption. The attitute taken up by the Court of Wards even at about the time of the adoption and also in the course of the trial is one in accordance with the policy of the Act. I have already referred to Ex. VI. This document and also paragraph 4 of the written statement of the Court of Wards show that its anxiety was merely to give the adoption more weight than it otherwise possessed but at the same time not to make it invalid by reason of the absence of its approval if otherwise it is valid. The same attitude was taken up by it in an affidavit filed on the 2nd December, 1922. In paragraphs 5 and 8 it states its attitude in the same manner as is just now stated by me. Finally it prays that the issues relating to the adoption and the will may be taken up earlier for trial so that it may exercise its discretion to confirm the adoption and the will or not in accordance with the Courts' finding. If the Court finds the adoption valid, the Court of Wards is prepared to give its consent. One may say that the Court of Wards has given its consent subject to the contingency that Court finds it valid. If we find the adoption to be valid, one may say the contingency has happened and the consent of the Court of Wards becomes an unconditional consent and the adoption is not invalid for want of its consent. It may be that in such a case to be on the safer side we ought to intimate our finding to the Court of Wards so that it may exercise its discretion and approve of it and on its confirming it the adoption will be regarded as validly made. But on my finding that the adoption is otherwise invalid all this discussion becomes academic so far as the question of adoption is concerned but it has to be considered in connection with the next point to be taken up.
8. The next question to be considered is the plaintiffs' claim for the savings and the jewels under the Rani's will Ex. OO. I will first take the case of the savings. When the Rani died, an inventory was made by the Court of Wards of all her property on the 30th July, 1921. That inventory is now exhibited as Ex. TTT. In this inventory there were Rs. 9,244-1-9 in the shape of coins. In the written statement of the Court of Wards reference is made to an inventory of the property of the Rani which shows that there was a sum of Rs. 80,900 existing in the shape of Government Promissory notes, war bonds, etc. The two together make up a sum of Rs. 89,000 odd and this must have been the amount referred to by the Rani in the second schedule in Ex. OO where she mentions a sum of Rs. 89,000 existing in the shape of Government Promissory notes, war bonds, interest thereon, etc. Taken with the cash certainly there is a sum of Rs. 89,000 if not more. The learned District Judge finds that Ex. OO to be genuine (Issue VIII) and that the Zamindarini was in a sound disposing state of mind when she executed it (Issue IX). The learned District Judge also finds on the 10th issue that the plaintiff takes the properties as a persona designata under the will. It is unnecessary to refer at great length to the various decisions of the Privy Council in this matter. It is enough to refer to types of cases on either side of the line. On behalf of the respondent I may mention the case in Lali v. Murli Dhar (1906) L.R. 33 I.A. 97 : I.L.R. 28 All. 488 (P.C.). In that case there was a wajib-ul-arz or a declaration' and the intention was to give the property to a person as an adopted son. There is nothing in that case from which it tan be inferred that the declarant intended to give the property to-the adopted son even if the adoption should turn out to be invalid. Accordingly the Privy Council held that the so-called adopted son could not take the property under the wajib-ul-arz. In the present^ case the Rani had set up, according to the view now taken by the Courts, a false authority to adopt and if the Courts are right in this conclusion she perfectly knew that she was setting up a false authority to adopt. It is because of her consciousness of the weakness of the adoption - an adoption which the Court of Wards refused to confirm - that she executed the wills one after another and began to assert her right to the property dealt with by the wills as her own absolute property which she has a right to dispose of at her will and pleasure. She was constantly arguing out this question with the Court of Wards giving reference to Hindu Law Books (vide Ex. PP). Undoubtedly she adopted the boy and in her will she wished that he should perform her ceremonies and in deference to her wishes the Court of Wards while not recognising the validity of the adoption permitted the plaintiff to perform the ceremonies. The boy was related to her through his father in two ways and his mother (vide Ex. F). All the correspondence preceding her death shows unmistakably that she very well knew the possibility of the adoption turning out invalid and the necessity for giving the boy as much as she could apart from the validity of the adoption. After all, the adoption itself is a fact though it may not turn out to be valid. And it is reasonable to assume that her desire was that he should get as much as she could give. In my opinion the decision in Lali v. Murli Dhar (1906) L.R. 33 I.A. 97 : I.L.R. 28 all. 488 (P.C.) and similar cases do not apply. On the other side of the line I may refer to the decision in Sri Rajah Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. The Court of Wards and Venkata Kumari Mahipati Surya Rao (1899) L.R. 26 I.A. 83 : I.L.R. 22 Mad. 383 : 9 M.L.J. 1 Sup. (P.C.) as typical. In the present case the motive for the will was the affection for the boy himself and the desire to provide for him irrespective of the validity of the adoption. I therefore agree with the District Judge in his finding on the tenth issue.
9. I now come to the 11th issue. It was now been well established by the decisions of the Privy Council that the income of the estate remains at the disposal of the Rani in the absence of anything done by her to show that she treated the accumulations as part of the husband's estate. It is enough to refer to the decision in Sowdaminee Dossee v. The Administrator-General of Bengal (1892) L.R. 20 I.A. 12 : I.L.R. 20 Cal. 433. and the latest decision in Venkatadri Appa Rao v. Parthasarathi Appa Rao (1925) L.R. 52 I.A. 214 : I.L.RR. 48 Mad. 312 : 48 M.L.J. 627 at 631 (P.C.) Our attention has been drawn by the learned Advocate for the Respondent to a case in Nabakishore Mandal v. Upendrakishore Mandal (1922) M.W.N. 95 at 96 which is also a decision of the Privy Council. It seems to sound the other way. But this last decision must be regarded as a decision on the facts of the case and not as laying down any general principle. The decision in Venkatadri Appa Rao v. Parthasarathi Appa Rao (1925) L.R. 52 I.A. 214 : I.L.RR. 48 Mad. 312 : 48 M.L.J. 627 at 631 (P.C.) is later. At page 321 it is observed:
If Venkayamma had actually received that income, she might have added it to the Medur estate as an accretion. But she did not and it remained at her absolute disposal by will or otherwise.
10. In the present case only the sum of Rs. 9,000 odd was under her actual control. The rest of the amount was with the Court of Wards. There is nothing to show that she intended to add it to the main estate as an accretion. On the other hand the letters which she was constantly addressing to the Court of Wards show that she treated this property as at her disposal and did not intend to make it an accretion to the estate. The fact of her execution of the Wills Exs. QQ and OO and her letter Ex. PP dated 9th May to the Court of Wards all show that she regarded this as her peculiar property and it cannot be regarded as an accretion to the estate. But the District Judge finds that on account of the provisions of the Court of Wards Act Meenakshisundara was not entitled to dispose of the accumulations of the estate by her will. I have already observed in dealing with the question of adoption that the Court of Wards Act governing the validity of the Rani's adoption and will is Act I of 1902 and not Regulation V of 1804. Section 34, Clause (d) says:
A Ward shall not be competent to dispose of his property by will without the consent of the Court: Provided first that the Court shall not withhold its consent under Clause (d) if the testamentary disposition is not contrary to the personal or special law applicable to the ward and does not appear likely to cause pecuniary embarrassment to the property, or to lower the influence or respectability of the family in public, estimation. Provided secondly that the Court may confirm a will made without its previous consent.
11. When the Rani executed the first will Ex. QQ, the attitude of the Court of Wards was that the will was perfectly valid as to the jewels and silver vessels and that it ought to recognise it but it ought not to recognise the rest of the will (vide Ex. UUU already mentioned). It accordingly requested her to make another will. When she executed the second will Ex. OO, she requested the Court of Wards to confirm it but she never got a reply to her request during her lifetime. The attitude of the Court of Wards in the course of the trial is disclosed not only by their written statement but by its affidavit filed on the 2nd December, 1922 already mentioned. These show that the Court of Wards was prepared to confirm the will if it was otherwise valid. It even asked that the issues relating to adoption and will should be tried earlier so that it may further the ends of justice by removing any obstacles that may exist on account of the lack of its confirmation. I have already shown that apart from the consent of the Court of Wards the will is perfectly valid. The learned District Judge refers to Section 32 and observes that only after all the charges mentioned in that section are met any surplus can be said to accrue. (See also Section 33.) But it is not suggested either by the Court of Wards or by the respondent that any of the purposes mentioned in Class I or Class II or the first part of Class III have remained unfulfilled. It is not suggested with reference to the second sub-clause of Class III that there was any distress among the ward's tenantry which has to be prevented or relieved against. The last clause of Class III refers to the improvement of the land and the property of the ward and the benefit of the ward and his property generally. This of course is too general and may include anything. But again it is not suggested that the Court of Wards had at that time any particular scheme for the improvement of the lands and property of the ward or for the benefit of the Rani and her property generally. But apart from this it is clear that this class refers not to the benefit of the estate of Uttumalat, in which the Rani holds only a widow's estate which she is bound to pass to the reversioners, but to her own peculiar property. This does not refer to the general estate but 'the improvement of land and property of the ward' and 'the benefit of the ward and his property generally'. So when we come to this class it is clear that it must be construed consistently with the double position which a Hindu widow occupies, to refer to her own peculiar property as contrasted with the main estate. All purposes in which the main estate is interested are exhausted by one or other of the provisions of Class I, Class II and the first two sub-clauses of Class III. From either point of view nothing in Class III prevents the accumulated savings from belonging to Rani Meenakshisundara as her own peculiar property. As to Section 33 the Court of Wards did not utilise the savings for the purchase of other landed property for the Rani. It is true that it did invest the money on the security of Government Promissory Notes and similar investments but this fact does not prevent the property from continuing to be the property of the Rani if otherwise it was. In my opinion therefore there is nothing in Section 32, 33 or 34 which prevents the property from becoming the absolute property of Rani Meenakshisundara except the confirmation of the Court of Wards which it is prepared to give even after her death. As to this the remarks already made about the adoption will apply equally to the will. One may say that the Court of Wards has given its consent subject to the contingency which has since happened, namely, the Court finding that the will is valid. But to be on the safer side it is better to intimate our finding to the Court of Wards so that it may confirm the will how. It is argued that the confirmation of a will after it is made should be made before the death of the testator. There is no ground for any such limitation in the section itself nor could the legislature have meant such a limitation because in many cases the proviso would work obvious injustice. There may be very little interval between the execution of the will and the death and there may not be enough of time for the Court of Wards to make the necessary enquiries before giving its confirmation. Reference is made to English authorities on the law of powers but I do not think that there is any analogy between the powers under the English law and the authority conferred on the Court of Wards by Section 34 to confirm a will after its execution and it is unnecessary to consider those authorities. It is also contended that the Court of Wards has handed over the estate to the respondent during the pendency of the appeal and it; cannot confirm the will now. I do not see any ground even for this limitation.
12. My conclusion on the 11th issue is therefore that the savings of the estate are the Rani's absolute property and the will in so far as it deals with those savings is perfectly valid subject to the confirmation of the Court of Wards. We now direct that our finding should be communicated to the Court of Wards to enable it to confirm the will. After its reply is received, the final judgment and decree as to this portion of the case will follow.
13. I will now take the case of the other moveable properties of the Rani such as jewels, furniture, vessels, etc. [His Lordship discussed the evidence and concluded:] I would therefore hold that these articles are in the same position, as the savings and provided the Court of Wards now exercises its discretion to confirm the will I would allow these appeals-in respect of these items in favour of the adopted boy. The final order can only be made after the receipt of, the reply, of the Court of Wards. This finishes A.S. Nos. 428 an Section 429 of 1930.
14. I now come to A.S. Nos. 159 of 1929, 411 of 1930 and 205 of 1929. The first of these appeals, namely, 159 and 411 relates to the claim of Balasubramania to the Zamindari on the ground that he is the father's sister's son of the last zamindar, that is, the first adopted boy who died in December 1891. On this part of the case I have had the advantage of perusing the judgment of my learned brother Stone, J. and I need not repeat his preliminary observations. Assuming for the purpose of these appeals without deciding that the claimant's mother was a legitimate half-sister of Hirudhalaiya, the question arises whether according to the Hindu Law of succession the plaintiff who is the father's sister's son of the last zamindar can be preferred to the fourth defendant Subbiah Tevar who is the maternal uncle. Both are atmabandhus. The plaintiff is descended from the paternal grandfather and the fourth defendant is descended from the maternal grandfather of the propositus. Both are descendants from ancestors of equal degree. So far, we are unable to find any ground for preferring one over the other. The question now arises what is the rule that should next be applied for preferring one over the other. In my opinion this question is conclusively decided by two decisions of the Judicial Committee. The first decision is Vedachela Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 735 : 41 M.L.J. 676 (P.C.) the judgment in which was delivered by Mr. Ameer Ali. At page 359 referring to the principle adopted by the Madras High Court by which the paternal side is preferred to the maternal side it is observed 'Their Lordships, again, in the view they take of the rights of the parties in the present case, do not think it necessary to express an opinion how far this proposition is in conformity with the express rule that in each class propinquity should be the governing factor'. This sentence refers to the rule that propinquity should be a governing factor. The question was then put - what is the place of the mother's brother among the atmabandhus? and it is observed "He is unquestionably the nearest sapinda; and according to the ancient rule relating to sapinda descent, 'to the nearest sapinda, the inheritance next belongs', (Manu IX 185) he would undoubtedly be entitled to Sankaramurthi's estate, unless he is cut out, as the learned Judges of the Madras High Court have cut him out in favour of the maternal aunt's grandson, by the inferential application of a rule of preference to each class to a person not named at all in the text, but who certainly stands nearest to the deceased by Sapinda relationship." Then reference was made to the earlier decisions in Muttuswami v. Muttukumaraswami (1892) I.L.R. 16 Mad. 23 : 2 M.L.J. 296 affirmed by the Privy Council in Muttuswami v. Muttukumaraswami (1896) L.R. 23 I.A. 83 : I.L.R. 19 Mad. 405 : 6 M.L.J. 113 (P.C.) and other decisions. At the bottom of page 361 reference is made to the passage in Mitakshara. This paragraph ends with the sentence 'the ground on which the rule is based is stated in express terms to be 'nearness' of blood. "Here" the text says, "by reason of nearness the atmabandhus are his successors in the first instance, and so on." Reference is then made to Smriti Chandrika, Saraswati Vilasa and Viramitrodaya and to modern text writers such as Golap Chandra Shastri and Raj Coomar Sarvadhikari and it was held that the propositions enunciated in Muttuswami v. Muttukumaraswami (1892) I.L.R. 16 Mad. 23 : 2 M.L.J. 296 furnish a safe guide. The final conclusion of the Board is stated in the following words:
In the present case before their Lordships, the appellant and the deceased were sapindas to each other; and he (the appellant) is undoubtedly nearer in degree to the deceased than Subramania. He also offers oblations to his father and grandfather to whom the deceased was also bound to offer pinda.... On all these grounds their Lordships think the view taken by the Subordinate Judge was well founded.
15. The concluding paragraph in my opinion lays down two rules for guidance in choosing the preferential heir among the bandhus. One rule is based on nearness in degree. The second rule is based on spiritual efficacy by offering oblations. By the use of the words 'on all these grounds' it is clear that the judgment rested on both the above grounds. In that case both the rules indicated the appellant to be the preferential heir. There was no conflict between the two rules. Whichever rule applied, the appellant must succeed. The question now naturally arises which rule should be first applied in a case where the two rules are in conflict with each other, that is, both the rules do not indicate the same person as the preferential heir. From the fact that the judgment first states that the appellant is undoubtedly nearer in degree and then states that he also offers oblations to his father and grandfather, one is inclined to infer that the first rule to be applied is the rule based on nearness and only if it fails to guide us that one should proceed to apply the rule based on spiritual efficacy or the offering of oblations. But all doubts are completely set at rest by the next decision of the Judicial Committee to which I will refer. The decision is reported in Jatindranath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : I.L.R. 59 Cal. 576 : 61 M.L.J. 442 (P.C.). In that case the claimants were related to the propositus in equal degree and the rule based on nearness in degree failed to furnish a guide. The judgment of the Board was delivered by Sir George Lowndes. At p. 376 (line 8 from the bottom) it is observed "it is not disputed that the opposing parties are in equal degrees of propinquity to the propositus". It is because of this that another rule of preference had to be enunciated by the Judicial Committee. At p. 377 (line 7) it was observed:
on the accepted reading of the text, the Mitakshara lays down no rule of preference as between members of the class who are, as here, in an equal degree of propinquity to the propositus, nor does it suggest that they are all to share equally.
16. The judgment of the Board then proceeds to discuss what rule should be applied in a case of equal degrees of propinquity and observes that though some writers and authorities apply the rule of preferring ex parte paterna to ex parte materna, the safer test is that of efficacy of offerings (bottom of p. 377). At p. 378 the Board repelled the argument that under the Mitakshara system there is no rule of spiritual efficacy at all. Authorities in support of the view that the, doctrine of spiritual benefit can also be referred to under the Mitakshara are quoted and how exactly the superior spiritual efficacy should be worked out is explained at the bottom of p. 378, and it was then observed, at the top of p. 379 that it is a mistake to suppose that the doctrine of spiritual benefit does not enter into the scheme of inheritance propounded in the Mitakshara. The final conclusion is then stated thus:
No doubt propinquity in blood is the primary test, but the intimate connection between inheritance and funeral oblations is shown by various texts of Manu (see for instance Ch. 9 v. v. 136, 142), and the Viramitrodaya brings in the conferring of spiritual benefit as the measure of propinquity where the degree of blood, relationship furnishes no certain guide.
17. I am of opinion that the general sense of the above can be expressed thus:
Propinquity in blood is the first rule to be applied. But where the degree of blood relationship furnishes no certain guide, that is, where the first rule does not enable us to choose, then the rule based on superior spiritual benefit should be applied as a measure of propinquity or as a ground of preference.
18. In the case before their Lordships the rule of nearness of degree failed to furnish a guide. They then proceeded to apply the rule based on the conferring of spiritual benefit and accordingly decided the appeal. In the case now before us following the guidance afforded by the last decision mentioned above which only supports my interpretation of the earlier decision in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 R. 44 Mad. 753 : 41 M.L.J. 676 (P.C.), I find that the plaintiff Balasubramania is remoter in degree than the fourth defendant Subbiah Tevar. The first rule has furnished me a certain guide. Not until it fails is it open to me to proceed to apply the rules based on the conferring of spiritual benefit. The rule based on superior spiritual benefit is certainly a rule to be applied even under the Mitakshara system, but it should be applied only after the rule based on nearness of degree fails.
19. The learned Advocate-General who appeared for the appillant contended that in the principles of Hindu Law by Sir Dinshaw Mulla (1932) Edition, p. 69 father's sister's son is mentioned as No. 6 and mother's brother is mentioned as No. 10. It is to lie noted that Sir Dinshaw Mulla was a member of the Board that delivered the judgment in Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : Cal. 576 : 61 M.L.J. 442 (P.C.). In the foot-note to item No. 6 this decision was referred to for saying that the father's sister's son succeeds before the mother's sister's son which is perfectly correct. But that the same decision would make the maternal Uncle superior to the father's sister's son being nearer in degree is not noticed. In my opinion Nos. 9 and 10 of that table ought to be placed before No. 6 by reason of the judgment in Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : Cal. 576 : 61 M.L.J. 442 (P.C.). I can only conjecture that Sir Dinshaw Mulla did not actually edit this part of the book. In the preface about seven gentlemen are mentioned as having helped him in the preparation of that Edition and it is dated January, 1932. The judgment of the Judicial Committee was delivered in July, 1931, page 65 also the decision in Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : Cal. 576 : 61 M.L.J. 442 (P.C.) was referred to. There it was mentioned that among bandhus of equal degree the rule of spiritual efficacy is adopted but the second principle (stated in the decision) was not mentioned, namely, that the rule of nearness in degree must first be applied before the rule of spirtual efficacy. I am bound by the decision of the Judicial Committee of which Sir Dinshaw Mulla was a member rather than by the statement in his text book which is perhaps a slip of the editors.
20. A decision of the Punjab Court reported in Ram Nath v. Duni Chand A.IAR. 1934 Lah. 622 (2) is then relied on. That decision solely rests on page 66 of Sir Dinshaw Mulla's Book and makes no reference to the Privy Council decisions. I am therefore unable to follow it.
21. The only other decision that has to be referred to is the decision in Sakharam Narayan v. Balkrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) - a judgment of three Judges (one of whom did not deliver a separate judgment). That case was decided before the Privy Council in Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : Cal. 576 : 61 M.L.J. 442 (P.C.). So the discussion in that judgment was confined only to the decision of the Judicial Committee in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 : 41 M.L.J. 676 (P.C.). Macleod, C.J. after mentioning the difficulty as to how degrees of propinquity could be compared with degrees of spiritual efficacy finally winds up by saying that under all the circumstances he prefers the father's sister's son. The judgment of Shah, J. refers to the question of spiritual efficacy and seems to be based solely on that ground. As already observed by me I do not in the least say that the rule of spiritual efficacy should not be applied to cases governed by the Mitakshara. On the other hand the decisions of the Privy Council compel me to apply such a rule but at the proper stage. In the language of Sir George Lowndes that rule is to be applied only after the rule of propinquity fails to furnish me a guide. I am unable to reconcile the decision in Sakharam Narayan v. Balkrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) with the decisions of the Judicial Committee.
22. This is the view taken by two learned Judges of this Court of that judgment. In Nucherla Changiah v. Subbaroya Aiyar (1929) 58 M.L.J. 562 it was held that the rule of spiritual benefit should be applied where the two parties are equal in degree but not where one is nearer in degree than the other. At page 565 Venkatasubba Rao, J. first refers to Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 41 M.L.J. 676 (P.C.). At p. 567 the learned Judge refers to the judgments of the Judicial Committee in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 41 M.L.J. 676 (P.C.) and takes the same view of case as I do. The learned Judge then refers to the decision in Sakharam Narayan v. Balkrishna Sadashiv (1925) L.R. 49 I.A. Bom. 739 (F.B.) and observes:
I have read the judgments in that case with close attention, but with the greatest respect I am unable to follow how they are reconcilable with the decision of the Judicial Committee in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 41 M.L.J. 676 (P.C.).
23. I would only add the other decision Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : I.L.R. 59 Cal. 576 : 61 M.L.J. 442 (P.C.) also to the last sentence. The other learned Judge also takes the same view and observes at p. 571 that the decision in Sakharam Narayan v. Balkrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) is not reconcilable with the decision of the Judicial Committee in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 41 M.L.J. 676 (P.C.). Possibly this decision in Sakharam Narayan v. Balkrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.), induced the Editors of Sir Dinshaw Mulla's book to leave the order as it stood in the prior editions. In the face of the two decisions of the Judicial Committee above referred to and particularly the second decision and its plain language I do not think these other authorities relied by the appellant should induce me to come to a different conclusion.
24. In the course of the argument reference was made to a decision of mine and Curgenven, J. in Kalimuthu Pillai V. Ammamuthu Pillai (1934) I.L.R. 58 Mad. 238 : 67 M.L.J. 503 but as it is agreed on all hands that this has no bearing on the point before us I abstain from further referring to it.
25. It is then argued by the learned Advocate-General that the phrases 'nearness in degree and propinquity' in those two decisions of the Judicial Committee have got a special meaning, that special meaning being superiority in spiritual benefit. For this contention reliance is placed on a decision of the Judicial Committee in Buddha Singh v. Laltu Singh (1915) L.R.42 I.A. 208 : I.L.R. 37 All. 604 : 29 M.L.J. 434 (P.C.) the judgment of the Board being delivered by Mr. Ameer Ali. At page 623 this sentence occurs:
Now, it is absolutely clear that under the Mitakshara, whilst the right of inheritance arises from sapinda-relationship, or community of blood, in judging of the nearness of blood relationship or propinquity among the gotraja, the test to be applied to discover the preferential heir is the capacity to offer oblations.
26. This sentence is supported by quotations from Viramitrodaya who says that when there are many claimants to the heritage among gotrajas, etc. Now in the first place the above sentence refers to gotraja sapindas. By saying so I do not mean that the rule based on spiritual efficacy is not to be considered in deciding as between bandhus. It has to be considered but at what stage is the question. For gotraja sapindas it has to be considered even before the rule of nearness. This is all that the passage amounts to. But whatever the passage may amount to, certainly it does not lay down a kind of definition for the phrases (1) nearness of blood relationship and (2) propinquity wherever those phrases occur in other judgments. That passage has to be read only in connection with that judgment. If we accept this argument, and apply it to the first sentence of the concluding paragraph of the judgment in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 41 M.L.J. 676 (P.C.) where it is observed that the appellant is nearer in degree to the deceased, the words 'nearer in degree' would mean - superiority of oblations. But if the first sentence is to be interpreted in that way the word 'also' in the next sentence has no significance. I think the two sentences in the judgment should be read in their natural meaning and not with reference to some sentence in another judgment, which was delivered six years before and which was not cited in it. It is true that the decision in Buddha Singh v. Laltu Singh (1915) L.R.42 I.A. 208 : I.L.R. 37 All. 604 : 29 M.L.J. 434 (P.C.) was relied on in the judgment in Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : 59 Cal. 576 : 61 M.L.J. 442 (P.C.) but not for this particular sentence. It was only relied on for the general principle that even under the Mitakshara Law the doctrine of spiritual benefit is to be looked to. If we apply the appellant's argument in interpreting the sentence page 379:
No doubt propinquity in blood is the primary test, but the intimate connection between inheritance and funeral oblations is shown by various texts of Manu (see for instance Ch. 9 vv. 136, 142, and the, viramitrodaya brings in the conferring of spiritual benefit as the measure of propinquity where the degree of blood relationship furnishes no certain guide.
27. It would mean that spiritual efficacy is the, primary test but where it fails to furnish a guide, spiritual benefit is the measure of propinquity. Both rules become one rule and there is nothing like a primary test and a secondary test; The context in the final conclusion in these two sentences shows that they are not be read with reference to some other judgment but naturally as they stand. I am therefore unable to accept the learned Advocate-General's contention based on the sentence referred to in Buddaha Singh v. Laltu Singh (1915) L.R.42 I.A. 208 : I.L.R. 37 All. 604 : 29 M.L.J. 434 (P.C.).
28. The result is that these appeals fail and must be dismissed with costs. As both are practically the same, in the second only a minimum pleader's fee of Rs. 100 will be allowed but in A.S. No. 159 we allow two sets of fees under Rule 46(2) of the Fee Rules.
29. Coming now to the third appeal namely, A.S. No. 205 of 1929 by Annapurani, I entirely agree with the judgment of my brother Stone, J., and do not wish to add any further reasons but I would only say this that one would very gladly say that Annapurani Nachiar should be regarded only as a postponed mother and not as a step-mother. But if I say so, it is not for us to say this but for the judicial Committee if the matter goes there.
30. This appeal is dismissed with costs.
31. In O.S. Nos. 1 and 3 of 1922 the plaintiff Balasubramania and fifth defendant were directed to pay a separate set of costs (estimated on the value of the suit) to the Court of Wards. This order is not justified. The Court of Wards took up a neutral position in the suits and beyond stating their attitude (which was very fair and proper) and asking for an early trial of the issues relating to the will and the adoption, had nothing more to do. In our opinion, a fee of Rs. 500 for the Court of Wards in both the suits in the Court below would be fair and the rest of the order directing plaintiff to pay the full costs in the lower Court will be vacated.
32. As the nature of the suits O.S. Nos. 1 and 3 is practically the same, it is enough to direct the plaintiff and fifth defendant, to pay full costs in one of them O.S. No. 3 of 1922 and half, costs in the other O.S. No. 1 of 1922 in the Court below.
Stone, J.
33. I have had the advantage of perusing the judgment just delivered and as to the appeals Nos. 428 of 1930 and 429 of 1930 1 propose to say nothing save that 1 agree with that judgment and have nothing to add.
34. As regards the appeals brought by Balasubramania (159 of 1929 and 411 of 1930) and Annapurani (205 of 1929), though I agree with my learned brother, the question of law in dispute being of importance I consider it desirable to express my opinion in my own words.
35. Balasubramanya Pandya Thalavar (herein written Balasubramania) and Rani Annapurani Nachiar each claims to be the nearest reversioner. The person who has been held to be the nearest reversioner is neither of these but one M. Subbayya Thevar.
36. M. Subbayya Thevar is the brother of Rani Meenakshi the wife of Hirudalaya and the adoptive mother of the last male owner (Navaneethakrishna Marudappa). Rani Annapurani Nachiar was the other, and senior, wife of Hirudalaya but was living separated from him, did not join in the adoption, and has been held by the Privy Council not to be an adoptive mother.
37. Balasubramania claims as the son of Gnanapurani Thai the daughter of Navaneethakrishna Marudappa Thevar, the maternal grandfather of Hirudalaya. The genealogical table showing only essentials is as follows:
=G. F. Navaneethakrishna=
|
________________________________________________
| | |
M | M
Periyanayaki X.Y.Z. Gomathimuthu | | |
__________| _______________ M | | | | Gnanapurani Rani Anna- =A.F. =A.M. M. Subbayya | purani Hirudalaya Meenakshi Thevar | Nachiar | Nachiar. (Claimant Balasubramania (Claimant Last Male No. 1) (Claimant No. 3) No. 2) owner
38. In the above table A. F. means adoptive father, M. mother, A. M. adoptive mother, G. F. grandfather and the sign--means married. The senior wife is shown on the left and the junior on the right. The parents of Meenakshi and Subbayya are deliberately left unnamed under the initials X. Y. Z. in order to stress the fact that there is no connection between that line and the line deriving from G.F. Navaneethakrishna.
39. It will thus be seen that one has to decide between the claims of:
1. An adoptive mother's brother.
2. An adoptive father's widow not being the adoptive mother.
3. A paternal grandfather's daughter's son.
40. I propose to take the last claimant first and contrast his rights with that of the first claimant.
41. Before examining the law I wish to put on one side an important question of fact which will have to be decided only if the conclusion arrived on the law is wrong. That question of fact is : Was Balasubramania's mother legitimate that is, was his grandmother the wife or only the concubine of Navaneethakrishna?
42. We are conscious that if our view of the law is wrong the non-determination of this question of fact may substantially protract this litigation and may require the case to come twice before the Judicial Committee. Had there been much doubt about the point we should have felt it necessary to guard against the possibility of these inconveniences by devoting a long time to the examination of the facts. Bearing in mind that this Appellate Court is still mainly concerned with Appeals of 1930 it was felt that three weeks could not be devoted to the examination of a question of fact which does not arise if the view of the law taken by us is right. As we have no doubt as to how the law stands under existing decisions of the Judicial Committee we did not feel justified in spending Judicial time in examining the question of fact. I accordingly proceed on the assumption most favourable to the appellant (and without deciding anything on the facts) that Balasubramania is a grandson legitimately descended from Navaneethakrishna.
43. It will be observed that both of the rival claimants whose claims are now being contrasted that is, Subbayya and Balasubramania fall within the class of Atma Bandhus. No question of agnatic relationship is involved. No question of more remote Bandhu classes is involved.
44. Within the class of Atma Bandhus what is the primary test? Is it propinquity of blood or is it spiritual benefit? That is the major question. As point to be considered as a step in resolving the major question is the further question, by propinquity of blood what is meant? Does one, as in English and Roman Law, determine nearness of blood relationship by going up to the common ancestor from the last male owner and coming down to the rival claimants or has nearness of blood, in India, a technical meaning he being nearest whose oblations confer the most spiritual benefit upon the departed? If the latter question is answered in the affirmative the major question ceases to be important because the propinquity of blood and spiritual benefit are not things to be contrasted; for he who gives the greatest spiritual benefit is, technically, nearest in blood.
45. That is, of course, a very artificial meaning to give to the term 'propinquity of blood' and one which, if sound, one would have expected to find laid down expressly in some judgment, if not in the ancient texts themselves. It is urged by the Advocate-General and pressed very strongly on three main grounds:
(1) The underlying idea found through the texts is that the right of inheritance is linked to the obligation to render oblations and therefore he whose oblations confer the greatest spiritual benefit is deemed throughout the texts to be the nearest in degree. Propinquity of blood is thus a complete misuse of language. Propinquity should be the term used, or rather, that term itself is unhappy, and some term like ''spiritually efficacious" should be used as the test in determining who should inherit. ' The next' is not 'the nearest in blood but 'he who is spiritually most efficacious'.
(2) This underlying idea is reflected in the rules of succession of agnates which by no means follow throughout their course the line that would be traced by applying the test of nearness of blood but do follow the line traced by applying the test of spiritual efficacy.
(3) The Judicial Committee has defined propinquity of blood as meaning spiritual efficacy.
46. I think the above is a fair condensation of the Advocate-General's very ingenious, and very strongly pressed, argument.
47. The above mentioned special definition of 'propinquity of blood' which the Judicial Committee is said to have laid down is found in Buddah Singh v. Laltu Singh (1915) L.R. 42 I.A. 208 : I.L.R. 37 All. 604 at 623 : 29 M.L.J. 434 (P.C.). The passage is as follows:
Now it is absolutely clear that under the Mitakshara, while the right of inheritance arises from sapinda-relationship, or community of blood, in judging of the nearness of blood-relationship or propinquity among the gotraja, the test to be applied to discover the preferential heir is the capacity to offer oblations-In the case of Bhyah Ram Singh v. Bhyah Ugur Singh (1870) 13 M.I.A. 373 the Board affirmed this rule in the following words : When a question of preference arises, as preference is founded on superior efficacy of oblations, that principle must be applied to the Solution of the difficulty.
48. My comment on the applicability of the above to this case is that there a different test was indicated according as one was dealing with Cognates or Agnates. Gotraja Sapindas can only be agnates.
49. With great respect I think the phrasing of the sentence 'in judging of the nearness of blood-relationship or propinquity among gotrajas the test to be applied...is the capacity to offer oblations' seems to suggest that one is seeking the nearest in blood when one is in fact seeking the nearest reversioner. Amongst agnates when one in seeking the reversioner one is seeking that one who has the greatest capacity to offer oblations : one is not seeking the nearest in blood. To define 'nearest in blood' as 'he who has the greatest capacity to offer oblations' is to give, I think, with great respect, an artificial meaning to the term 'nearest in blood'. But, however that may be, in that judgment it is pointed out that this test of nearness is a test one applies amongst gotra sapindas. It does not follow that it is a test to be applied amongst cognates, who, from the very nature of the case, are linked to the last male holder through females, who have left the old gotra and entered a new one, so that their children have very little spiritual connection with the gotra of the male owner.
50. When we turn to consider what are the tests to be applied when the rival claimants are both atma bandhus, that is, cognates we have two decisions of the Judicial Committee as our guide and it seems to me there is no ambiguity at all about what is there laid down.
51. In Vedachela Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 : 41 M.L.J. 676 (P.C.) the contest was between the propositus' mother's brother and the propositus' grandfather's daughter's son Y. It will be seen that Y was five degrees away from the propositus and X was three degrees away. Spiritually Y was completely unconnected, his oblations going to an entirely different line of ancestors namely his father and father's father, and father's father's father, and his mother's father etc. none of which is the same as the propositus' father etc. and mother's father etc. On the other hand X was spiritually connected with the propositus, the maternal grandfather of the propositus being X's father. Thus X was nearer in both senses. But if one regarded apiritual benefit as the primary test there was really nothing to argue about. Y could not be compared with X. He was no more connected with the propositus than a stranger. If that were the crucial test one would have expected his claim to have been disallowed on the broad ground that he was unconnected with the propositus except by blood, which did not arise for consideration unless it appeared that no one was spiritually connected; that as X was spiritually connected it was unnecessary to consider blood relationship at all. The actual course the trial, the arguments, and the judgments took was very different. What was being debated there was whether a claimant ex parte paterna (Y) necessarily, and because he fell within that class, succeeded over a claimant ex parte materna (X). That is to say, having divided cognates into the broad classes in ascending order, matru, pitru, atma bandhus, do you then continue with the sub-divisions (still) in ascending order of merit ex parte materna, ex parte paternal! The answer is: No.
52. In that case the four propositions enunciated by this High Court in Muttusami v. Muttukumarasami (1892) I.l.R. 16 Mad. 23 at 30 : 2 M.L.J. 296 were approved. Of these rules the fourth is 'as between bandhus of the same, class, the spiritual benefit they confer upon the propositus is a ground of preference'.
53. That, of course, assists the Advocate-General's argument. The question is should one read for 'a ground of preference' the words 'the primary test when determining preference'. The four rules, it will be noticed do not even glance at nearness in blood as a ground of giving preference between claimants both of the atma bandhu class.
54. The Judicial Committee in the case now being referred to make clear, in my opinion, how they regarded the matter. First of all amongst cognates one makes three major divisions: (1) one's own (atma), (2) one's father's (pitru), (3) one's mother's (matru) bandhus. Why? Because (page 759) of propinquity.
55. Now if one regards propinquity as meaning nearness in blood it is obvious that does not necessarily postpone matru to pitru though it does necessarily postpone pitru and matru to atma other things being equal. The postponement of the matru class to the pitru must therefore depend on some factor other than nearness of blood. Is it the special merit belonging to the father idea which makes everything connected with the father, in this branch of law, more efficacious than things connected with the mother? If so when sub-dividing a class should one again divide claimants into those who are connected through the father (ex parte paterna) and those who are connected through the mother (ex parte materna) regarding the father-connection as so much more important than the mother-connection that all in the former class are preferred to all in the latter class irrespective of nearness of blood or spiritual benefit? The answer again is : No.
56. The matter was further considered, by the Judicial Committee in a case reported in Jotindra Nath Roy v. Nagendra Nath Roy (1930) 61 M.L.J. 442 (P.C.)
57. That case, in my opinion, lays down three rules to apply for determining who is entitled to succeed where the claimants are all atma bandhus, namely.
1. The primary test is propinquity in blood. If that fails then.
2. He comes first whose oblations are more spiritually efficacious. If that fails then.
3. Those ex parte paterna are to be preferred to those ex parte materna.
58. The language used is quite free from ambiguity and the appellant fails in my opinion unless that language is wrongly used. Thus at page 447 their Lordships say:
It is-a mistake to suppose that the doctrine of spiritual benefit does not enter into the scheme of inheritance propounded in the Mitakshara. No doubt propinquity in blood is the primary test but the intimate connection between the inheritance and funeral oblations is shown in various texts of Manu and the Viramitrodaya brings in the conferring of spiritual benefit as the measure of propinquity where the degree of blood relationship furnishes no certain guide.
59. The Italics are mine. It seems to me too clear for argument that there the Judicial Committee is saying the first test is nearness of blood amongst atma bandhus. If that test fails because both claimants are equally near in blood, as in that case, then you consider spiritual efficacy. I gather from pages 447, 448, that if that test fails then you go to the ex parte paterna rule. The paragraph on page 449 beginning ' their Lordships' and ending ' preferential heirs' must I think be read as making spiritual efficacy a test of propinquity only when the primary test or nearness of relationship fails.
60. It is said, and rightly, that Sakharam Narayan v. Balakrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) and Ram Nath v. Duni Chand A.I.R. 1934 Lah. 622 (2) are against this view which is also contrary to the observations made in a well-known text book, edited by a late member of the Judicial Committee Sir Dinshah Mulla. As Ram Nath v. Duni Chand A.I.R. 1934 Lah. 622 (2) is a decision of a Bench one member of which is at present a Member of the Judicial Committee and as Mulla's Principles of Hindu Law does undoubtedly contain at page 69 a table which places maternal uncle as number 10 and a father's father's daughter's son as No. 6, it is necessary to consider the difficulties created by these authorities.
61. The report in Ram Nath v. Duni Chand A.I.R. 1934 Lah. 622 (2) is very short and appears to amount to little more than a statement that the law is as laid down in Mulla's Principles of Hindu Law for which there is authority presumably Sakharam Narayan v. Balakrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.). The Privy Council decisions are not referred to. As to the statement of tables in Mulla's Principles of Hindu Law I agree with what my learned brother has said.
62. In Sakharam Narayan v. Balakrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) it was held that in the Bombay Presidency a father's sister's son succeeds in preference to a maternal uncle. That case was treated by a Bench of this High Court in Chengiah v. Subbaroya (1929) 58 M.L.J. 562 at 567 as irreconcilable with Vedachela Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 : 41 M.L.J. 676 (P.C.). With that criticism I respectfully agree. It is only possible to arrive at the conclusion arrived at in Sakharam Narayan v. Balakrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) by making spiritual efficacy amongst bandhus of the same class the primary test. The Privy Council have said that ' no doubt' nearness of blood relationship is the primary test and only on that failing does one go to the spiritual efficacy test.
63. In these circumstances I apply as the primary test nearness of blood relationship using that term in the ordinary sense. That gives precedence to the respondent to appeals 159 of 1929 and 411 of 1930 which accordingly fail.
64. The next case raises an interesting point which had it been a case of first impression I should have struggled hard to find a reason to prefer the claim of Annapurani.
65. The contest is now between the maternal uncle and a widow of the adoptive father. It must be made quite clear that this widow is not an adopting mother. The first question is : Is Annapurani (to use a term introduced in this case) a postponed mother, or only a step-mother? If a step-mother is she, as a gotra sapinda, in the class of agnates having a right to inherit and therefore entitled to succeed before any cognate?
66. It is admitted by Counsel, and it is indeed apparent that he has got a long line of authorities against him, but he urges that there is no Privy Council decision upon the point and although there is a Full Bench decision of this Court which binds us still it is a matter open for argument before the Judicial Committee and our function is either to follow the Full Bench, or if we doubt that, refer the matter to a Full Bench, and in any case keep the point open for argument hereafter.
67. The starting point of the first branch of the case is necessarily Annapurni Nachiar v. Forbes (1899) L.R. 26 I.A. 246 : I.L.R. 23 Mad. 1 : 9 M.L.J. 209 (P.C.) where the Judicial Committee decided, as between Annapurani and Meenakshi, who was the adoptive mother. That case decided that on the death of the last male owner Meenakshi as adoptive mother succeeded in preference to Annapurani. What we have now to decide, Meenakshi being dead, is who is the next reversioner to the same last male owner. Is it Annapurani or is it Meenakshi's brother? The fact that Meenakshi's brother is a thoroughly worthless person and a man who in Meenakshi's life time caused endless trouble is, of course an irrelevant consideration save that, all other things being equal, he is not the sort of person to let in to the succession if worth were a relevant factor.
68. The argument, or rather this branch of it, seeks to establish that Annapurani is a mother but one postponed to Meenakshi. It is said that where a man with two wives adopts a boy both the wives are mothers. If he associates one in the act of adoption that one is preferred and the other 'postponed'. This is the sense in which the term 'postponed mother' is used. That is to say Annapurani counts as against the world as a mother, but as against the co-wife she comes after her. If this were sound her position as a reversioner would be next after the adoptive mother because she would come in the class 'mother', a class entitled to come in as being specifically named in the texts. She would thus rank as number 7, but she would take a limited estate so that on her death the reversioner once again would be found by going back to the last male owner. This, of' course, is why Meenakshi being dead we go to the next heir to the last male owner instead of to the heir to Meenakshi.
69. If on the other hand Annapurani is a step-mother then a whole line of authorities has to be set aside before one could admit her to inheritance at all. As the authorities at present stand she is not a competitor. If those authorities are set aside then, because by marriage into the gotra of the last male owner's family she is an agnate she would come in the agnatic class and it is said would therefore come before any bandhus. It is clear that sapindas take before Samanodakas who in turn take before bandhus. The jump made by the argument is, of course, in assuming that because a person is a gotra sapinda, that person has necessarily a right to inherit.
70. At pages 6, 7, 8, their Lordships in Annapurni Nachiar v. Forbes (1899) L.R. 26 I.A. 246 : I.L.R. 23 Mad. 1 : 9 M.L.J. 209 (P.C.), consider the hypothetical case put by Sir W.H. Macnaghten of the man with three wives who dies leaving three widows to one whom he gives authority to adopt. Who succeeds to the adopted? Does the adopting mother or do all three? He seekes to resolve that conondrum, upon which the texts are silent, by posing another case, this case, where instead of giving authority to one widow he himself adopts What then? Sir W.H. Macnaghten arrives, in the opinion of the Judicial Committee, at a wrong conclusion because he assumes that in such a case the man could not select one of his wives as adopting mother and so all three would be adopting mothers. Granted that, it would appear to follow that the fact that the adoption is done under authority by one widow would make no difference and so the conclusion is arrived at that all three widows would be adoptive mothers.
71. The validity of the assumption being denied the conclusion is also denied. Further the passage quoted from Sir W.H. Macnaghten's Preliminary Remarks at pages 7, 8 of Annapurni Nachiar v. Forbes (1899) L.R. 26 I.A. 246 : I.L.R. 23 Mad. 1 : 9 M.L.J. 209 (P.C.) is somewhat in conflict with his assumption that a man in his lifetime cannot prefer one wife and make her alone the adoptive mother. The Judicial Committee for these and other reasons arrived at the conclusion that a man can so prefer one wife and can make her the adoptive mother so that {see page 7, lines 18, 19) she has male issue and the other wives have not.
72. If that is so it is my opinion that the Privy Council was placing these two ladies in the following position: Meenakshi could, by her husband, be placed in the position of adoptive mother without Annapurani being placed in the position of adoptive mother. By a fiction Meenakshi having been put in that position she becomes a woman with male issue, Annapurani does not. The two ladies are thus in the same position as they would be if Meenakshi had given birth to a son and Annapurani had not. That is the same as regarding Meenakshi as the mother and Annapurani as the step-mother. I therefore, with regret, reject the 'postponed' mother idea.
73. Now if Annapurani is a step-mother we go to the line of cases which exclude step-mothers from the inheritance.
74. Before doing so, however, it is necessary to mention an analogy and to make a preliminary observation. In two events it becomes necessary for the ancient texts to provide for the transfer of joint Hindu family property and it is, I think, clear that they are concerned to provide fairly (bearing in mind certain ideas strange to European thought and in particular the small importance of women and the great importance of the gotra) for everybody who would normally be dependent for their subsistence upon the joint family estate. It is not their purpose to overlook some class so that that class of necessity starves. Women in particular, though taking little, because their needs are supposed small, are not ignored. For to ignore them would be to condemn them either to starve or to subsist on charity for, of course, it was not imagined that they could earn their own living.
75. The two events above named are partition and death of the male owner. On partition it is made clear by the texts that mother includes step-mother. (These rules are absolute in Madras but that does not invalidate the argument.) See Setlur Part I, p. 130, Section 100. 'The childless wives of the father are declared to take equal shares with the sons'. A statement that involves step-mothers for if there are sons and childless wives the conclusion is obvious, a conclusion that is underlined in Sections 108 and 109. "The meaning is that a partition instituted by the sons after the father's death, a mother having no stridhanam of her own takes a share equal to that of a son.... Here the word 'mother' is used to include her co-wives". Again, when dealing with partition the Smriti Chandrika Ibid. p. 234, Section 14 says "The word 'mother' includes a step-mother". So also at p. 326, Section 36. The reason is clear. The lawgivers are dealing with ladies without possessions of their own and are guarding them, upon a partition, from being left penniless.
76. Do similar considerations arise on the death of the last male owner? There the mother is clearly provided for but only after a variety of others. What is her position if for instance the last maleholder leaves a son? Clearly the son takes to the exclusion of the mother, let alone the step-mother. What happens to the mother in the meantime? The answer I think is to be found in the fact that she is not only a mother but also, of necessity for the point to arise, a widow. She has her widow's right of maintenance, a right that is quite apart from her mother's right of inheritance.
77. Thus it is not necessary to give her rights of inheritance to save her from starvation.
78. I now pass to Mari v. Chinnammal (1884) I.L.R. 8 Mad. 107 (F.B.) where the contest was between a paternal uncle and a step-mother that is, between two agnates whereas here the contest is between a cognate and an agnate.
79. In that case (see bottom of p. 120, top of p. 121) the claim of the step-mother was put first on the ground that if one wife bears a child all become mothers of male issue (Manu ix 183). She is postponed to the natural mother because of the doctrine of the half blood, when the natural mother is dead then the step-mother comes in. This is merely the postponed mother's argument above examined.
80. It was put next on the ground that she was anyhow a gotraja sapinda. Her right so to succeed was allowed in Bombay in Kesserbai v. Valab Raoji (1879) I.L.R. 4 Bom. 188 at 208. It appears also to have been allowed in early decisions of the Sadar Dewani Adalat. These early decisions were doubted by Sir W.H. Macnaghten (Select cases 39, 42). A Full Bench of the Calcutta High Court denied the step-mother's right to succeed under the Mitakshara Lala Joti Lal v. Mussamut Durani Kowar (1864) B.L.R. (Sup. Vol.) P. 67. Both in Kumaravelu v. Virana Goundan (1879) I.L.R. 5 Mad. 29 and Muttammal v. Vengalashmi Ammal (1882) I.L.R. 5 Mad. 32 by Benches of this High Court the stepmother's right to inherit was rejected.
81. If Kumaravelu v. Virana Goundan (1884) I.L.R. 8 Mad. 107 (F.B.) is referred to it will be found to turn on the view that (1) step-mother is not a mother within the Mitakshara Ch. II, Section iii(2) a step-mother is not a sapinda at all in the Dayabaga sense (connection by funeral cake) or in the Mitakshara sense (of one body). Muttammal v. Vengalashmi Ammal (1882) I.L.R. 5 Mad. 32 follows the above but adds that she might possibly succeed as a bandhu, thus rejecting her claim to be regarded as a gotra sapinda.
82. Mari v. Chinnammal (1884) I.L.R. 8 Mad. 107 (F.B.) on the other hand regards her as a gotraja sapinda on the ground that, as she is a wife as well as a step-mother, the fact that she has married into the gotraja makes her a sapinda of her husband and hence of his son. If she is a sapinda it seems clear that she is a gotraja sapinda. If her right of inheritance is to be derived from her gotraja sapindaship by parity of reasoning all the wives of agnates are also brought in. All are agnates, and all come in before cognates. Thus the second wife of a paternal uncle's grandson would come before a sister's son, the former being a gotraja sapinda and the latter a cognate.
83. In Lalloobhoy Bapoobhoy v. Cassibai (1880) L.R. 7 I.A. 212 : I.L.R. 5 Bom. 110 (P.C.) the contest was between the widow of a paternal first cousin and two males described as 'on the extreme verge of sapinda relationship' namely, seven in descent from a common ancestor six in ascent from the last male holder. That was an appeal from Bombay. It was recognised by the High Court of Bombay that the law prevailing in Madras was opposed to the widow's claim. They relied on the texts of Manu, the Mitakshara and the Mayukha. As to Manu the text relied upon was 'to the nearest sapinda male or female, after him in the next degree the inheritance next belongs; then on failure of sapindas and their issue, samannodaka or distant kinsmen shall be the heir'.
84. In Madras following a text of Baudhayana it was long the accepted doctrine that women are incompetent to inherit unless specially named. This was stated to be the position in Madras at the time of the above mentioned Privy Council decision (see p. 118). It had however already been departed from (for reasons which I shall mention) in a case relating to a cognate by a bench of this High Court in 1875 in Kutti Ammal v. Radhakristna Aiyan (1875) 8 M.H. C.R. 88 (sister). This was followed in a series of decisions namely, Lakshmanammal v. Tiruvengada Mudali (1882) I.L.R. 5 Mad. 241 (half sister); Nallanna v. Ponnal (1890) I.L.R. 14 Mad. 149 : 1 M.L.J. 46 (son's daughter) Ramappa Udayan v. Arumuga Udayan (1893) I.L.R. 17 Mad. 182 : 4 M.L.J. 30 (daughter's daughter); Venkatasubramaniam Chetti v. Thayaramma (1898) I.L.R. 21 Mad. 263 (brother's daughter); Narasimma v. Mangamma (1889) I.L.R. 13 Mad. 10 and Chinnammal v. Venkatachala (1892) I.L.R. 15 Mad. 421 : 2 M.L.J. 86 (father's sister). These came in [before the passing of the Hindu Law of Inheritance (amendment) Act 1929] after all male bandhus. Rajah Venkatanarasimha Appa Rao Bahadur v. Rajah Surenani Venkata Purushothama Jagannadha Gopala Row Bahadur (1908) I.L.R. 31 Mad. 321 : 18 M.L.J. 409.
85. Thus by that series, when dealing with Bandhus, that is, cognates, women have, in Madras, been admitted to the succession though not named in the texts. Thereby it would seem that the text of Baudhayana has been departed from. By parity of reasoning it is said it should be departed from in the case of females in the same gotra that is in favour of the widows of all male sapindas. It is further said that this class should be admitted in the same way as female cognates have been admitted namely, at the very end of the appropriate class. But in the case of female cognates the appropriate class is the class of bandhus; in the case of a female in the same gotra the appropriate class is the class of cognates. Therefore these widows should all come before any male cognates.
86. As the Judicial Committee points out at p. 121 of Lallubhai Bapubhai v. Cassibhai (1880) L.R. 7 I.A. 212 : I.L.R. 5 Bom. 110 (F.C.) after considering what is meant by sapinda relationship, 'the wife upon her marriage enters the gotra of her husband, and thus becomes constructively in consanguinity or relationship with him, and through him, with his family'. That being so it is observed 'there would appear to be nothing incongruous in her being allowed to inherit as a member of that family under a scheme of inheritance which did not adopt the principle of the general incapacity of women to inherit'.
87. It is then observed that the existence of the right to inherit has still to be established. Then it is pointed out that that right (if it exists at all) must be based upon her position as a gotraja sapinda. It was held in that case that she has that right and has it in priority to a very remote male gotraja sapinda. It seems to follow that in Bombay she comes in before any cognate.
88. Now that case is not reconcilable with Mari v. Chinnammal (1884) I.L.R. 8 Mad. 107 at 127 (F.B.) in my opinion except upon the basis that the law in Bombay is different from the law in Madras. At that time it was the accepted view that it was different. The difference (apart from usage) lay in the fact, noted at p. 127 of Mari v. Chinnammai (1884) I.L.R. 8 Mad. 107 at 127 (F.B.) that in this Presidency, at that time, the rule was followed that females are incompetent to inherit. That is females have no right, as such, to succeed. Their right such as it is, depends on their being within a named class. As I have observed that view had already been departed from in Kutti Ammal v. Radakristna Aiyan (1875) 8 M.H. C.R. 88.
89. It was held by the Full Bench in Mari v. Chinnammal (1884) I.L.R. 8 Mad. 107 at 127 (F.B.) (By Turner, C.J., Kerrian and Hutchins, JJ.) that no right to succeed is obtained by a woman who by marriage has entered the gotra and acquired sapindaship solely through the husband. Consequently the step-mother's right to succeed was negatived not merely on the ground that her right to succeed was postponed to that of the paternal uncle, but on the ground that she had no right to succeed at all. See p. 129
90. Muthuswami Aiyar, J. while generally concurring makes it clear that she is not a 'mother' that she is a gotraja sapinda but that, being a woman, though a gotraja sapinda, she has no right to inherit unless she falls within a named class. The only named class she could fall within would be that of 'mother' and, as she is not a mother, she has no right to inherit. The basis of this is the above quoted text which appears to me to have been departed from by the line of cases that lets in cognate females.
91. In Seethai v. Nachiar (1912) I.L.R. 37 Mad. 286 : 26 M.L.J. 10 the position that was taken up by the claimant step-mother was two-fold (1) she was entitled to inherit as a gotraja sapinda; alternatively, (2) she was entitled to inherit as a bandhu. Her right under either head was denied and it was declared that she came nowhere in the line of succession; that the property should go to the Crown in preference to her. This, of course, is the extreme position. The view that was taken of Mari v. Chinnammal (1884) I.L.R. 8 Mad. 107 at 127 (F.B.) which I have above indicated is my view of that decision namely that it did not merely postpone the step-mother but declared that she had no right to inherit at all. It is not necessary to consider that case further. Whether one agreed or disagreed with the conclusion that a step-mother cannot come in as a bandhu it would not assist the claimant here for there is here a rival who would come before her if that is the ground in which her claim is based.
92. In Nanhi v. Gauri Shankar (1905) I.L.R. 28 All. 187 it was held that no female not expressly named in the Mitakshara as heir has a right of inheritance and so a son's daughter was declared to have no right to inherit from her grandfather. This decision is contrary to the line of Madras cases above mentioned which let in female cognates. In Tahaldai Kumri v. Gaya Pershad Sahu (1909) I.L.R. 37 Cal. 214 and Rama Nand v. Surgiani (1894) I.L.R. 16 All. 221, it was decided that a stepmother, not being a 'mother' is not in a named class and not being in a named class has no right to inherit.
93. There is thus a very long line of cases all consistent so far as Madras is concerned, special usage or custom not being shown, for the views (1) that a step-mother is not a mother, (2) not being a mother she is not in a named class, (3) not being in a named class and being a woman and a gotraja sapinda and not merely a cognate she has no right to succeed and (4) though not within a named class though a woman if a cognate she may succeed after male bandhus.
94. There remains the difficulty created by the series of cases commencing as long ago as 1875 which let in female cognates that is, the difference between (3) and (4) above. It will be noticed that in every case in which a woman has so been let in she is a woman born in the family. I find it a little difficult to see the logical basis for the distinction. If a woman, whether of the family by marriage or by birth is not within a named class, and if the texts restricted inheritance in the case of females to those within a named class, I should have thought that either both groups of women were excluded or that both groups of women could be included. But granting this why were the women born in the family included? A reference to Kutti Ammal v. Radakristna Aiyar (1875) 8 M.H.C.R. 88 and Lakshmanammal v. Tiruvengada Mudali (1882) I.L.R. 5 Mad. 241 makes it clear. I think, that they were admitted as bandhus in view of the decision of the Judicial Committee in Girdari Lall Roy v. The Bengal Government (1868) 12 M.I.A. 448 to the effect that the Mitakshara Chap. II, Section 6 does not purport exhaustively to enumerate all the bandhus capable of inheriting and therefore the mere omission of for example, a sister is not conclusive. On the other hand the enumeration of the classes of females who can inherit as sapindas has been treated in this Presidency as complete and it does not contain the term 'stepmother' she finds no place, no place as a bandhu because she is not a bandhu; no place as a gotraja sapinda because she is not within the exhaustive list of named females. The letting in of the female cognates is thus not a departure from the age-long position taken up in this Presidency that amongst sapindas the classes of women having the right to inherit are restricted to widow, daughter, mother, grandmother, etc.
95. In these circumstances I am clearly of the opinion that if any change is to be made in the rights of a step-mother to inherit it must be made either by legislation or by a Court able to review and reverse the long chain of cases I have referred to which exclude the step-mother.
ORDER
96. The Court of Wards have now sent their reply confirming the will. The plaintiff in (O.S. No. 2 of 1922) will therefore have a decree for all the savings of the estate in the hands of the Court of Wards that is whatever form they might be existing and the jewels, silver vessels, furniture and other moveables including cash in the hands of the Rani at the time of her death, with further interest on the savings including the cash with the Rani from the date of the death of the Rani after deducting the funeral expenses which it is agreed, amount to Rs. 3,000. This will not include the funds of the Devasthanams.
97. The District Court may determine the actual figure to which the plaintiff is entitled, in execution.
98. As to the interest, the actual interest earned by the Court of Wards and afterwards during the time the bonds and money were lying in deposit under the direction of the District Court will be allowed. Some amount is drawn by the respondent and on that amount, if it came out of the savings 6 per cent, will be allowed from the date of drawing.
99. The jewels, vessels, lace cloths, samans, etc. as described in Ex. TTT will be delivered to the plaintiff excluding the jewels and vessels devoted to the Hirudalaya temple, (vide Schedule I to Ex. OO) and any other Devasthanams.
100. The parties will give and take proportionate costs here and in the Court below.
101. The trusteeship of the Hirudalaya temple and the jewels bequeathed for the benefit of that temple under Schedule I of the will have not been the subject of any issue in this case and we do not decide it. The parties, if so advised, may settle that dispute in another suit. Meanwhile the jewels given for the benefit of that temple will remain in deposit under the directions of the District Court.
102. On the portion as to which the appellant in A. Section No. 428 of 1930 has succeeded, the respondent (Subbayya Thevan) will pay the proportionate court-fee to Government. On the disallowed portion, the appellant himself will pay the court-fees. As to Appeal 429 of 1930, the appellant will pay Rs. 500 to Government.
103. In O.S. No. 2 of 1922, the order of the Court below directing the plaintiff to pay full costs to the Court of Wards will be vacated. There will be no separate order as to costs of the Court of Wards in this suit. The plaintiff in this suit will be liable along with the plaintiff in O.S. No. 1 of 1922 for the Rs. 500 decreed to the Court of Wards in all the litigation.
Navaneethakrishna Marudappa ... vs The Collector And Agent To The ... on 2 April, 1935
Equivalent citations: 160 Ind Cas 647, (1935) 69 MLJ 632
Author: Ramesam
JUDGMENT
Ramesam, J.
1. These appeals arise out of three suits filed by different claimants to recover possession of the impartible Zamindari of Uttumalai in the Tinnevelly District and for further reliefs. It will be convenient to set forth briefly the earlier history of the Zamindari as far as it is relevant for our purpose and the disputes regarding it which culminate in the filing of these three suits. The last adult male Zamindar who enjoyed the Zamindari under an undisputed title was Hirudhalaiya Marudappa Tevar. He succeeded his father Navaneethakrishna in 1850 when he was a minor and his mother Perianayaki was managing the Zamindari until he attained majority in 1857 when he began to manage the Zamindari himself. In 1864 he married two wives on the same day (1) Annapurni Nachiar and (2) Meenakshisundara Nachiar. Very soon after the marriage misunderstandings arose between him and Annapurni. He discarded her. Later on he claimed that he had actually divorced her but this allegation was found against him by the Civil Courts in O.S. No. 17 of 1889. In 1888 Hirudhalaiya was seriously ill. He intended to make an adoption and chose a boy but the boy died before being adopted. In March, 1889, Annapurni with the help of her influential brothers made a forcible entry into the residence of the Zamindar and established herself in an out-house and began to harass him till his death. Meanwhile he found another boy. By July, 1891 he had been suffering from diabetes and carbuncle. On the 24th July, he had informed the Head Assistant Collector that he was going to make an adoption on the 26th. On the 25th similar letters were addressed to the District Collector and the Tahsildar. On the 26th he adopted the infant; he addressed letters to the Collector, Head Assistant Collector and the Tahsildar informing them of the adoption (Nos. 88, 89 and 90). On the first August he writes another letter to the Collector in which he desires that the Zamindari may be kept under Government management, that his minor adopted boy should be looked after by Government until he attains majority and that his wife Meenakshisundara should be the boy's personal guardian. Similar letters were addressed on the same day to the Head Assistant Collector and the Tahsildar (Nos. 92, 93 and 94). In another set of letters written on the same day (Nos. 95, 96 and 97) to the Collector, Head Assistant Collector and the Tahsildar he complains that his wife Annapuranam was intending to cause disturbance during his funeral ceremonies and requests Government to take steps to compel her to remain within her residence and that no disturbance is caused either by her or by her brothers and prays that necessary orders should be issued to the Magistrates and the Police Officials accordingly. In another letter written on the same day he requests that certain charities should be maintained during the period of minority of the adopted son and that thereafter the income may be given to a Swamiar for conducting the charities. A similar letter was addressed to the Head Assistant Collector (No. 99) regarding certain temples. This refers to the scale of expenses to be incurred during the minority of the adopted son and even after the minor attains age. Then we have got two letters written on the 4th August (Nos. 100 and 101) and another on the 5th August (No. 102). On the 6th August there is another letter (No. 103). In this he says that his wife Annapurni and her brothers came to his place with a big crowd of armed men with a view to make another adoption to the Zamindar. Then he says that she is not entitled to make an adoption because he and his other wife Meenakshisundaram have made an adoption and that she is making such attempts with a view to set up an adoption and bring a false suit thereafter. The office copies of the letters set forth above are all contained in a book (Ex. XXII). Hirudhalaiya died on the 12th August. The Court of Wards immediately took up the management of the Zamindari. The adopted boy died in December, 1891. Immediately there was a scramble for possession between the two widows Annapurani and Meenakshisundaram. The Collector of Tinnevelly filed an interpleader suit (O.S. No. 15 of 1892). It was decided in favour of Meenakshisundaram by the District Court in 1893. There was an appeal to the High Court which confirmed the District Judge's judgment. The judgment of the High Court is reported in Annapurni Nachiar v. The Collector of Tinnevelly (1895) I.L.R. 18 Mad. 277 : 5 M.L.J. 21. There was an appeal by Annapurni to His Majesty in Council. That appeal was disposed of in July, 1899, and the Judgment is reported in Annapurni Nachiar v. Forbes (1899) L.R. 26 I.A. 246 : I.L.R. 23 Mad. 1 : 9 M.L.J. 209 (P.c.). Some time after the decision of the High Court, that is, in December, 1898, possession of the Zamindari was delivered to Meenakshisundaram but by that time she had incurred considerable debts as she had to conduct the litigation unaided. She continued in possession of the Zamindari up to 1901. Finding herself unable to extricate herself from her indebtedness she applied to the Government to place the Zamindari under the Court of Wards. The Government accordingly authorised the Court of Wards to take charge of the estate (Ex. XXVIII). By 1908 most of the pressing liabilities were discharged. In December, 1908, she requested that the Zamindari may be restored to her but this request was refused in March, 1909 (Exs. XXXII and XXXIII). She repeated this request several times but always unsuccessfully for example Exs. IX-a, XXX and XXXI in 1913. At about this time she seems to have entertained the idea of adoption. Ex. RR dated 22nd September, 1908, addressed from Mylapore (in Madras) to her younger sister's husband Chiranjivi Seeniaiyah refers to some adoption thus:
As regards the matter of adoption everything will happen according to-the will of God.
2. In 1914 the adoption of her brother's son Balasubramania Pandia Thalavar seems to have been suggested to her. In the letters he is referred to as Durai Raj and he was to be brought down to Madras. In 1916, her desire to make an adoption and execute a will seems to have been brought to the notice of the Court of Wards and it passed a resolution saying that the question would be considered on receipt of a formal communication through the Collector (vide Ex. VII). She actually made an adoption on the 26th January, 1920, without previously obtaining the permission of the Court of Wards and Ex. A is the deed of adoption. In this deed she recites the fact of the first adoption and then states that her husband gave her permission to adopt in case the adopted boy died. This is the first occasion on which she states in writing that her husband gave her permission to adopt in case the first adopted boy died. J She also executed a will (Ex. QQ) on the same day. The manager of the estate (a Deputy Collector) communicated the act of adoption and the execution of the will to the Court o Wards (Ex. B-1). The Rani also sent a communication to ' the Collector (Ex. C-1). The will purported to dispose of four items of property (1) jewels and silver vessels, (2) surplus funds saved by the Court of Wards, (3) home-farm lands, sites, etc. and (4) Surandai Mittah. The Collector reported the adoption (Ex. D) and proceeded to make further enquiries about the adopted boy. The Rani's brother Subbiah Thevar sent a petition to the Court of Wards saying that the Rani had no authority to make a second adoption but she pretended to have adopted a boy '10 days ago' and he prayed to the Court of Wards to restrain the Rani from making the adoption (vide Ex. XXVII dated 4th February, 1920). He repeated the same prayer in another petition, Ex. XXVI dated 7th February, 1920. Under the directions of the Court of Wards certain enquiries were made by the manager and by the Collector Mr. Cox. Mr. Cox finally reported that the Rani had no authority from her husband to make a second adoption in the event of the first adopted son dying. The Collector finally intimated to her that the Court of Wards is prepared to confirm her will only as regards the jewels and silver vessels, but not as to the savings and if a new will was executed on the above lines it would be confirmed by the Court of Wards. (Ex. UUU dated 18th July, 1920) and by Ex. VI dated the 8th October, 1920, the Collector again informed her 'that the Court of Wards is not prepared at present to confirm the adoption made by you. This will however not prevent the Court from confirming the adoption later on if it should appear that the want of the Court's confirmation is the only thing which rendered the adoption illegal.' She executed a second will Ex. OO dated the 9th May, 1921, under which she bequeathed the amount of "Rs. 89,000 which remain in the shape of Government pro-note and war bonds and interest thereon, and the jewels, vessels, lace cloth, etc., and other samans which I may give to my adopted son from time to time". This will was sent with the letter Ex. PP dated the 9th May, 1921, for confirmation by the Court of Wards. We next have got a letter dated the 26th June (Ex. HH) purporting to be written by the Rani to the Government in which she requested 'that all my moveables, jewels, vessels, cloths, etc., which belong to me solely and which I have left in charge of my adopted son may be allowed to be retained with him for his personal and other use as per my will' and that the savings also should be handed over to him. Two days after, she addressed another letter (Ex. KK) to the Collector. On the 4th July, 1921 she died. This fact was reported on the same day to the Collector by Ex. LL by the natural father of the adopted boy with a request that the Court of Wards should continue to manage the estate.
3. Three suits were filed for the recovery of the Zamindari. The earliest suit was filed by Balasubramania Pandia Thalavar on the 29th September, 1921. He is a son of Gnanapurani Thai a daughter of Navanitha Krishna. Gnanapurani's mother was Gomati Muthu Nachiar. Thus Gnanapurani is a half-sister of Hirudhalaiya and the plaintiff claims to be the father's sister's son of the first adopted boy who died in 1891. This suit was numbered as O.S. No. 1 of 1922 of the District Court of Tinnevelly. The next suit was filed by the second adopted son on the 4th November, 1921. This was originally numbered as O.S. No. 103 of 1921 of the Sub-Court, Tinnevelly but was afterwards transferred to the District Court and re-numbered there as O.S. No. 2 of 1922. The third suit was filed by Subbiah Thevar brother of Meenakshisundara on the 30th March, 1933 in the Sub-Court of Tinnevelly and was numbered as 34 of 1922. This was also transferred to the Tinnevelly District Court and re-numbered there as O.S. No. 3 of 1922. Thus all the three suits were tried together by the District Judge of Tinnevelly. He dismissed O.S. Nos. 1 and 2 and decreed O.S. No. 3. The defeated parties filed appeals to the High Court. A.S. No. 428 of 1930 is the appeal of the adopted son against the decree in O.S. No. 2 dismissing his suit and A.S. No. 429 of 1930 is his appeal in O.S. No. 3 decreeing Subbiah Thevar's suit. These two appeals raise substantially the same question though two appeals had to be formally filed. A.S. No. 159 of 1929 is the appeal of Balasubramania against the decree in O.S. No. 1 dismissing his suit and A.S. No. 411 of 1930 is his appeal against the decree in O.S. No. 3. These two appeals are substantially the same though two appeals had to be formally filed. A.S. No. 205 of 1929 is the appeal of Rani Annapurni Nachiar against the decree in O.S. No. 1. Thus we have got five appeals pending in this Court but they are substantially, three appeals by three claimants. Subbiah Thevar is the respondent in all these appeals. The following table exhibits for convenience the suits from which these appeals are filed and the respective appellants.
Appeal No. Appellant. O.S. No.
A.S. No. 428 of 1930 Adopted son 2 of 1922 " 429 of 1930 Do. 3 of 1922 A.S. No. 159 of 1929 Balasubramania 1 of 1922 " 411 of 1930 Do. 3 of 1922 A.S. No. 205 of 1929 Annapurni 1 of 1922.
4. It will be convenient now to take up the appeals of the adopted son, namely, 428 and 429 of 1930. The substantial question to be decided in these appeals is whether the appellant was validly adopted. The fact of adoption was found in favour of the plaintiff-appellant by the District Judge and that question has not been raised before us again. The third issue raises the question whether Meenakshisundarahad express authority from her husband to adopt. The fourth issue raises the question whether she had implied authority. The seventh issue raises (he question whether the adoption is invalid for want of sanction by the Court of Wards or can be subsequently confirmed by them. All these issues relate to the adoption. The issues 8 to 11 relate to the will and its effect on the jewels and savings. Taking up the question of authority, the learned District Judge found against the alleged express and implied authority. [His Lordship discussed the evidence and concluded:] I agree therefore with the finding of the District Judge on the third issue that there was no express authority to make a second adoption.
5. I now come to the fourth issue. On this issue the argument of the appellant may be stated thus. It has been held by the Privy Council in Suryanarayana v. Venkataramana (1906) L.R. 33 I.R. I.A. 145 : I.I.R. 29 Mad. 382 : 16 M.L.J. 276 276 (P.C.) that an authority to adopt given in very general terms should not be narrowly construed so as to limit the authority to one adoption. When an authority is given in general terms, it may be reasonably construed to support several adoptions one after another as each adopted boy dies. In the course of the judgment it was observed by the Privy Council that one should not be astute to defeat a genuine adoption. This is no doubt true but in my opinion all this reasoning relates only to construing an authority which has been given. In this case there is no authority at all. All that we have is an actual adoption by the Zamindar in association with Meenakshisundara. No authority was ever given for us to construe. To imply an authority under such circumstances would be analogous to making a will for a man on the ground that if he had thought of it he would have made a will and a will is highly desirable. I do not think that such a process is permissible. Letters Nos. 92, 95 and 98 in Ex. XXII show that the Zamindar has never contemplated the possibility of the adopted boy dying young but expected him to live until after he attained majority and to enjoy the Zamindari. His mind did not look beyond that stage. If he had adverted to the possibility of the boy living for some time and then dying without having been married, it is true that one may speculate as likely that he would have desired his widow if she survived the boy to adopt' a son. But there is nothing in the whole record of this case to show that his mind ever adverted to that possibility. It is true that an authority to adopt need not be express in the sense that it should be expressed is so many words. One may infer it from signs or from other unambiguous conduct. Mandavilli Seetharamamma v. Attivilli Suryanarayana (1926) I.L.R. 49 Mad. 969 : 51 M.L.J. 466. To imply an authority from circumstances of the kind in Mandavilli Seetharamamma Attivilli Suryanarayana (1868) 12 M.I.A. 397 is different from inferring an authority merely from circumstances showing that the Zamindar would have given such an authority if he considered all the contingencies that might arise. I do not think that this kind of implication by law, which is not an inference of fact is permissible. To do so would be to assimilate the law in the Madras Presidency as regards the authority to adopt to that in Bombay. In Bombay unless a husband prohibited an adoption the authority to the widow is always presumed or in other words no express authority of the husband is necessary. But the law in Madras is different. In Collector of Madura v. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 a case relating to the Ramnad Zamindari from the same part of the country as this case - the Privy Council considered so early as 1868 the question whether a widow can adopt a son to her husband without express authority. They held that where the authority of the husband is wanting she can adopt only if authorised by the sapindas. To imply authority wherever it is desirable or to infer an authority always from the fact of a prior adoption would be practically to assimilate the law in Madras to that in Bombay. The appellant's contention practically amounts to laying down a rule of law that wherever a Zamindar adopts a son and afterwards the boy dies his widow has implied authority to adopt another boy. I do not think that we are justified in laying down such a rule of law in Madras. I therefore agree with the learned District Judge in finding against the implied authority.
6. The other issue, namely, the seventh issue which relates to authority need not detain us long for on the findings on the third and fourth issues the discussion on it is merely academic but it will have a bearing on the next point to be considered, namely, the validity of the will. So from that point of view I will just notice it. At the time of the adoption and the execution of the will the Court of Wards Act in force in this Presidency was Madras Act I of 1902 which repealed an older regulation relating to the same matter - Regulation V of 1804. The learned District Judge thought that as the estate was taken up in 1901 at a time when the old Regulation of 1804 as amended by Madras Act IV of 1899 was in force the validity of all the acts of the Rani must be determined with reference to that old regulation as amended. The old regulation enables the Court of Wards to take the properties only from incapacitated proprietors. But the amending Act of 1899 enabled proprietors to request the Government to declare them incapacitated on such request and the Court of Wards thereafter to assume superintendence of their property. As a matter of fact in this case the Government considered it unnecessary to declare the Zamindarini incapacitated under Section 2 of (Madras) Act IV of 1899 but authorised the Court of Wards to assume management of the estate under Section 2, Regulation V of 1804 and the amending Act of 1899 made no difference. But whatever was the provision of law under which the Court of Wards took up the management, the Act which was in force at the time of the adoption was the Act of 1902 and the Advocates on both sides agree before us that the validity of her action, should be judged with reference to the Act of 1902 and not with reference to the earlier regulation of 1804. Section 34, Clause (c) says:
A ward shall not be competent to adopt or give a written or verbal permission to adopt without the consent of the Court. Provided first, that the Court shall not withhold its consent under Clause (c) if the adoption is not contrary to the personal or special law applicable to the ward, and does not appear likely to cause pecuniary embarrassment to the property, or to lower the influence or respectability of the family in public estimation. Provided secondly, that the Court may confirm an adoption made without its previous consent.
7. I have quoted only that portion of the section which is relevant to the question of adoption. The attitute taken up by the Court of Wards even at about the time of the adoption and also in the course of the trial is one in accordance with the policy of the Act. I have already referred to Ex. VI. This document and also paragraph 4 of the written statement of the Court of Wards show that its anxiety was merely to give the adoption more weight than it otherwise possessed but at the same time not to make it invalid by reason of the absence of its approval if otherwise it is valid. The same attitude was taken up by it in an affidavit filed on the 2nd December, 1922. In paragraphs 5 and 8 it states its attitude in the same manner as is just now stated by me. Finally it prays that the issues relating to the adoption and the will may be taken up earlier for trial so that it may exercise its discretion to confirm the adoption and the will or not in accordance with the Courts' finding. If the Court finds the adoption valid, the Court of Wards is prepared to give its consent. One may say that the Court of Wards has given its consent subject to the contingency that Court finds it valid. If we find the adoption to be valid, one may say the contingency has happened and the consent of the Court of Wards becomes an unconditional consent and the adoption is not invalid for want of its consent. It may be that in such a case to be on the safer side we ought to intimate our finding to the Court of Wards so that it may exercise its discretion and approve of it and on its confirming it the adoption will be regarded as validly made. But on my finding that the adoption is otherwise invalid all this discussion becomes academic so far as the question of adoption is concerned but it has to be considered in connection with the next point to be taken up.
8. The next question to be considered is the plaintiffs' claim for the savings and the jewels under the Rani's will Ex. OO. I will first take the case of the savings. When the Rani died, an inventory was made by the Court of Wards of all her property on the 30th July, 1921. That inventory is now exhibited as Ex. TTT. In this inventory there were Rs. 9,244-1-9 in the shape of coins. In the written statement of the Court of Wards reference is made to an inventory of the property of the Rani which shows that there was a sum of Rs. 80,900 existing in the shape of Government Promissory notes, war bonds, etc. The two together make up a sum of Rs. 89,000 odd and this must have been the amount referred to by the Rani in the second schedule in Ex. OO where she mentions a sum of Rs. 89,000 existing in the shape of Government Promissory notes, war bonds, interest thereon, etc. Taken with the cash certainly there is a sum of Rs. 89,000 if not more. The learned District Judge finds that Ex. OO to be genuine (Issue VIII) and that the Zamindarini was in a sound disposing state of mind when she executed it (Issue IX). The learned District Judge also finds on the 10th issue that the plaintiff takes the properties as a persona designata under the will. It is unnecessary to refer at great length to the various decisions of the Privy Council in this matter. It is enough to refer to types of cases on either side of the line. On behalf of the respondent I may mention the case in Lali v. Murli Dhar (1906) L.R. 33 I.A. 97 : I.L.R. 28 All. 488 (P.C.). In that case there was a wajib-ul-arz or a declaration' and the intention was to give the property to a person as an adopted son. There is nothing in that case from which it tan be inferred that the declarant intended to give the property to-the adopted son even if the adoption should turn out to be invalid. Accordingly the Privy Council held that the so-called adopted son could not take the property under the wajib-ul-arz. In the present^ case the Rani had set up, according to the view now taken by the Courts, a false authority to adopt and if the Courts are right in this conclusion she perfectly knew that she was setting up a false authority to adopt. It is because of her consciousness of the weakness of the adoption - an adoption which the Court of Wards refused to confirm - that she executed the wills one after another and began to assert her right to the property dealt with by the wills as her own absolute property which she has a right to dispose of at her will and pleasure. She was constantly arguing out this question with the Court of Wards giving reference to Hindu Law Books (vide Ex. PP). Undoubtedly she adopted the boy and in her will she wished that he should perform her ceremonies and in deference to her wishes the Court of Wards while not recognising the validity of the adoption permitted the plaintiff to perform the ceremonies. The boy was related to her through his father in two ways and his mother (vide Ex. F). All the correspondence preceding her death shows unmistakably that she very well knew the possibility of the adoption turning out invalid and the necessity for giving the boy as much as she could apart from the validity of the adoption. After all, the adoption itself is a fact though it may not turn out to be valid. And it is reasonable to assume that her desire was that he should get as much as she could give. In my opinion the decision in Lali v. Murli Dhar (1906) L.R. 33 I.A. 97 : I.L.R. 28 all. 488 (P.C.) and similar cases do not apply. On the other side of the line I may refer to the decision in Sri Rajah Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. The Court of Wards and Venkata Kumari Mahipati Surya Rao (1899) L.R. 26 I.A. 83 : I.L.R. 22 Mad. 383 : 9 M.L.J. 1 Sup. (P.C.) as typical. In the present case the motive for the will was the affection for the boy himself and the desire to provide for him irrespective of the validity of the adoption. I therefore agree with the District Judge in his finding on the tenth issue.
9. I now come to the 11th issue. It was now been well established by the decisions of the Privy Council that the income of the estate remains at the disposal of the Rani in the absence of anything done by her to show that she treated the accumulations as part of the husband's estate. It is enough to refer to the decision in Sowdaminee Dossee v. The Administrator-General of Bengal (1892) L.R. 20 I.A. 12 : I.L.R. 20 Cal. 433. and the latest decision in Venkatadri Appa Rao v. Parthasarathi Appa Rao (1925) L.R. 52 I.A. 214 : I.L.RR. 48 Mad. 312 : 48 M.L.J. 627 at 631 (P.C.) Our attention has been drawn by the learned Advocate for the Respondent to a case in Nabakishore Mandal v. Upendrakishore Mandal (1922) M.W.N. 95 at 96 which is also a decision of the Privy Council. It seems to sound the other way. But this last decision must be regarded as a decision on the facts of the case and not as laying down any general principle. The decision in Venkatadri Appa Rao v. Parthasarathi Appa Rao (1925) L.R. 52 I.A. 214 : I.L.RR. 48 Mad. 312 : 48 M.L.J. 627 at 631 (P.C.) is later. At page 321 it is observed:
If Venkayamma had actually received that income, she might have added it to the Medur estate as an accretion. But she did not and it remained at her absolute disposal by will or otherwise.
10. In the present case only the sum of Rs. 9,000 odd was under her actual control. The rest of the amount was with the Court of Wards. There is nothing to show that she intended to add it to the main estate as an accretion. On the other hand the letters which she was constantly addressing to the Court of Wards show that she treated this property as at her disposal and did not intend to make it an accretion to the estate. The fact of her execution of the Wills Exs. QQ and OO and her letter Ex. PP dated 9th May to the Court of Wards all show that she regarded this as her peculiar property and it cannot be regarded as an accretion to the estate. But the District Judge finds that on account of the provisions of the Court of Wards Act Meenakshisundara was not entitled to dispose of the accumulations of the estate by her will. I have already observed in dealing with the question of adoption that the Court of Wards Act governing the validity of the Rani's adoption and will is Act I of 1902 and not Regulation V of 1804. Section 34, Clause (d) says:
A Ward shall not be competent to dispose of his property by will without the consent of the Court: Provided first that the Court shall not withhold its consent under Clause (d) if the testamentary disposition is not contrary to the personal or special law applicable to the ward and does not appear likely to cause pecuniary embarrassment to the property, or to lower the influence or respectability of the family in public, estimation. Provided secondly that the Court may confirm a will made without its previous consent.
11. When the Rani executed the first will Ex. QQ, the attitude of the Court of Wards was that the will was perfectly valid as to the jewels and silver vessels and that it ought to recognise it but it ought not to recognise the rest of the will (vide Ex. UUU already mentioned). It accordingly requested her to make another will. When she executed the second will Ex. OO, she requested the Court of Wards to confirm it but she never got a reply to her request during her lifetime. The attitude of the Court of Wards in the course of the trial is disclosed not only by their written statement but by its affidavit filed on the 2nd December, 1922 already mentioned. These show that the Court of Wards was prepared to confirm the will if it was otherwise valid. It even asked that the issues relating to adoption and will should be tried earlier so that it may further the ends of justice by removing any obstacles that may exist on account of the lack of its confirmation. I have already shown that apart from the consent of the Court of Wards the will is perfectly valid. The learned District Judge refers to Section 32 and observes that only after all the charges mentioned in that section are met any surplus can be said to accrue. (See also Section 33.) But it is not suggested either by the Court of Wards or by the respondent that any of the purposes mentioned in Class I or Class II or the first part of Class III have remained unfulfilled. It is not suggested with reference to the second sub-clause of Class III that there was any distress among the ward's tenantry which has to be prevented or relieved against. The last clause of Class III refers to the improvement of the land and the property of the ward and the benefit of the ward and his property generally. This of course is too general and may include anything. But again it is not suggested that the Court of Wards had at that time any particular scheme for the improvement of the lands and property of the ward or for the benefit of the Rani and her property generally. But apart from this it is clear that this class refers not to the benefit of the estate of Uttumalat, in which the Rani holds only a widow's estate which she is bound to pass to the reversioners, but to her own peculiar property. This does not refer to the general estate but 'the improvement of land and property of the ward' and 'the benefit of the ward and his property generally'. So when we come to this class it is clear that it must be construed consistently with the double position which a Hindu widow occupies, to refer to her own peculiar property as contrasted with the main estate. All purposes in which the main estate is interested are exhausted by one or other of the provisions of Class I, Class II and the first two sub-clauses of Class III. From either point of view nothing in Class III prevents the accumulated savings from belonging to Rani Meenakshisundara as her own peculiar property. As to Section 33 the Court of Wards did not utilise the savings for the purchase of other landed property for the Rani. It is true that it did invest the money on the security of Government Promissory Notes and similar investments but this fact does not prevent the property from continuing to be the property of the Rani if otherwise it was. In my opinion therefore there is nothing in Section 32, 33 or 34 which prevents the property from becoming the absolute property of Rani Meenakshisundara except the confirmation of the Court of Wards which it is prepared to give even after her death. As to this the remarks already made about the adoption will apply equally to the will. One may say that the Court of Wards has given its consent subject to the contingency which has since happened, namely, the Court finding that the will is valid. But to be on the safer side it is better to intimate our finding to the Court of Wards so that it may confirm the will how. It is argued that the confirmation of a will after it is made should be made before the death of the testator. There is no ground for any such limitation in the section itself nor could the legislature have meant such a limitation because in many cases the proviso would work obvious injustice. There may be very little interval between the execution of the will and the death and there may not be enough of time for the Court of Wards to make the necessary enquiries before giving its confirmation. Reference is made to English authorities on the law of powers but I do not think that there is any analogy between the powers under the English law and the authority conferred on the Court of Wards by Section 34 to confirm a will after its execution and it is unnecessary to consider those authorities. It is also contended that the Court of Wards has handed over the estate to the respondent during the pendency of the appeal and it; cannot confirm the will now. I do not see any ground even for this limitation.
12. My conclusion on the 11th issue is therefore that the savings of the estate are the Rani's absolute property and the will in so far as it deals with those savings is perfectly valid subject to the confirmation of the Court of Wards. We now direct that our finding should be communicated to the Court of Wards to enable it to confirm the will. After its reply is received, the final judgment and decree as to this portion of the case will follow.
13. I will now take the case of the other moveable properties of the Rani such as jewels, furniture, vessels, etc. [His Lordship discussed the evidence and concluded:] I would therefore hold that these articles are in the same position, as the savings and provided the Court of Wards now exercises its discretion to confirm the will I would allow these appeals-in respect of these items in favour of the adopted boy. The final order can only be made after the receipt of, the reply, of the Court of Wards. This finishes A.S. Nos. 428 an Section 429 of 1930.
14. I now come to A.S. Nos. 159 of 1929, 411 of 1930 and 205 of 1929. The first of these appeals, namely, 159 and 411 relates to the claim of Balasubramania to the Zamindari on the ground that he is the father's sister's son of the last zamindar, that is, the first adopted boy who died in December 1891. On this part of the case I have had the advantage of perusing the judgment of my learned brother Stone, J. and I need not repeat his preliminary observations. Assuming for the purpose of these appeals without deciding that the claimant's mother was a legitimate half-sister of Hirudhalaiya, the question arises whether according to the Hindu Law of succession the plaintiff who is the father's sister's son of the last zamindar can be preferred to the fourth defendant Subbiah Tevar who is the maternal uncle. Both are atmabandhus. The plaintiff is descended from the paternal grandfather and the fourth defendant is descended from the maternal grandfather of the propositus. Both are descendants from ancestors of equal degree. So far, we are unable to find any ground for preferring one over the other. The question now arises what is the rule that should next be applied for preferring one over the other. In my opinion this question is conclusively decided by two decisions of the Judicial Committee. The first decision is Vedachela Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 735 : 41 M.L.J. 676 (P.C.) the judgment in which was delivered by Mr. Ameer Ali. At page 359 referring to the principle adopted by the Madras High Court by which the paternal side is preferred to the maternal side it is observed 'Their Lordships, again, in the view they take of the rights of the parties in the present case, do not think it necessary to express an opinion how far this proposition is in conformity with the express rule that in each class propinquity should be the governing factor'. This sentence refers to the rule that propinquity should be a governing factor. The question was then put - what is the place of the mother's brother among the atmabandhus? and it is observed "He is unquestionably the nearest sapinda; and according to the ancient rule relating to sapinda descent, 'to the nearest sapinda, the inheritance next belongs', (Manu IX 185) he would undoubtedly be entitled to Sankaramurthi's estate, unless he is cut out, as the learned Judges of the Madras High Court have cut him out in favour of the maternal aunt's grandson, by the inferential application of a rule of preference to each class to a person not named at all in the text, but who certainly stands nearest to the deceased by Sapinda relationship." Then reference was made to the earlier decisions in Muttuswami v. Muttukumaraswami (1892) I.L.R. 16 Mad. 23 : 2 M.L.J. 296 affirmed by the Privy Council in Muttuswami v. Muttukumaraswami (1896) L.R. 23 I.A. 83 : I.L.R. 19 Mad. 405 : 6 M.L.J. 113 (P.C.) and other decisions. At the bottom of page 361 reference is made to the passage in Mitakshara. This paragraph ends with the sentence 'the ground on which the rule is based is stated in express terms to be 'nearness' of blood. "Here" the text says, "by reason of nearness the atmabandhus are his successors in the first instance, and so on." Reference is then made to Smriti Chandrika, Saraswati Vilasa and Viramitrodaya and to modern text writers such as Golap Chandra Shastri and Raj Coomar Sarvadhikari and it was held that the propositions enunciated in Muttuswami v. Muttukumaraswami (1892) I.L.R. 16 Mad. 23 : 2 M.L.J. 296 furnish a safe guide. The final conclusion of the Board is stated in the following words:
In the present case before their Lordships, the appellant and the deceased were sapindas to each other; and he (the appellant) is undoubtedly nearer in degree to the deceased than Subramania. He also offers oblations to his father and grandfather to whom the deceased was also bound to offer pinda.... On all these grounds their Lordships think the view taken by the Subordinate Judge was well founded.
15. The concluding paragraph in my opinion lays down two rules for guidance in choosing the preferential heir among the bandhus. One rule is based on nearness in degree. The second rule is based on spiritual efficacy by offering oblations. By the use of the words 'on all these grounds' it is clear that the judgment rested on both the above grounds. In that case both the rules indicated the appellant to be the preferential heir. There was no conflict between the two rules. Whichever rule applied, the appellant must succeed. The question now naturally arises which rule should be first applied in a case where the two rules are in conflict with each other, that is, both the rules do not indicate the same person as the preferential heir. From the fact that the judgment first states that the appellant is undoubtedly nearer in degree and then states that he also offers oblations to his father and grandfather, one is inclined to infer that the first rule to be applied is the rule based on nearness and only if it fails to guide us that one should proceed to apply the rule based on spiritual efficacy or the offering of oblations. But all doubts are completely set at rest by the next decision of the Judicial Committee to which I will refer. The decision is reported in Jatindranath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : I.L.R. 59 Cal. 576 : 61 M.L.J. 442 (P.C.). In that case the claimants were related to the propositus in equal degree and the rule based on nearness in degree failed to furnish a guide. The judgment of the Board was delivered by Sir George Lowndes. At p. 376 (line 8 from the bottom) it is observed "it is not disputed that the opposing parties are in equal degrees of propinquity to the propositus". It is because of this that another rule of preference had to be enunciated by the Judicial Committee. At p. 377 (line 7) it was observed:
on the accepted reading of the text, the Mitakshara lays down no rule of preference as between members of the class who are, as here, in an equal degree of propinquity to the propositus, nor does it suggest that they are all to share equally.
16. The judgment of the Board then proceeds to discuss what rule should be applied in a case of equal degrees of propinquity and observes that though some writers and authorities apply the rule of preferring ex parte paterna to ex parte materna, the safer test is that of efficacy of offerings (bottom of p. 377). At p. 378 the Board repelled the argument that under the Mitakshara system there is no rule of spiritual efficacy at all. Authorities in support of the view that the, doctrine of spiritual benefit can also be referred to under the Mitakshara are quoted and how exactly the superior spiritual efficacy should be worked out is explained at the bottom of p. 378, and it was then observed, at the top of p. 379 that it is a mistake to suppose that the doctrine of spiritual benefit does not enter into the scheme of inheritance propounded in the Mitakshara. The final conclusion is then stated thus:
No doubt propinquity in blood is the primary test, but the intimate connection between inheritance and funeral oblations is shown by various texts of Manu (see for instance Ch. 9 v. v. 136, 142), and the Viramitrodaya brings in the conferring of spiritual benefit as the measure of propinquity where the degree of blood, relationship furnishes no certain guide.
17. I am of opinion that the general sense of the above can be expressed thus:
Propinquity in blood is the first rule to be applied. But where the degree of blood relationship furnishes no certain guide, that is, where the first rule does not enable us to choose, then the rule based on superior spiritual benefit should be applied as a measure of propinquity or as a ground of preference.
18. In the case before their Lordships the rule of nearness of degree failed to furnish a guide. They then proceeded to apply the rule based on the conferring of spiritual benefit and accordingly decided the appeal. In the case now before us following the guidance afforded by the last decision mentioned above which only supports my interpretation of the earlier decision in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 R. 44 Mad. 753 : 41 M.L.J. 676 (P.C.), I find that the plaintiff Balasubramania is remoter in degree than the fourth defendant Subbiah Tevar. The first rule has furnished me a certain guide. Not until it fails is it open to me to proceed to apply the rules based on the conferring of spiritual benefit. The rule based on superior spiritual benefit is certainly a rule to be applied even under the Mitakshara system, but it should be applied only after the rule based on nearness of degree fails.
19. The learned Advocate-General who appeared for the appillant contended that in the principles of Hindu Law by Sir Dinshaw Mulla (1932) Edition, p. 69 father's sister's son is mentioned as No. 6 and mother's brother is mentioned as No. 10. It is to lie noted that Sir Dinshaw Mulla was a member of the Board that delivered the judgment in Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : Cal. 576 : 61 M.L.J. 442 (P.C.). In the foot-note to item No. 6 this decision was referred to for saying that the father's sister's son succeeds before the mother's sister's son which is perfectly correct. But that the same decision would make the maternal Uncle superior to the father's sister's son being nearer in degree is not noticed. In my opinion Nos. 9 and 10 of that table ought to be placed before No. 6 by reason of the judgment in Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : Cal. 576 : 61 M.L.J. 442 (P.C.). I can only conjecture that Sir Dinshaw Mulla did not actually edit this part of the book. In the preface about seven gentlemen are mentioned as having helped him in the preparation of that Edition and it is dated January, 1932. The judgment of the Judicial Committee was delivered in July, 1931, page 65 also the decision in Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : Cal. 576 : 61 M.L.J. 442 (P.C.) was referred to. There it was mentioned that among bandhus of equal degree the rule of spiritual efficacy is adopted but the second principle (stated in the decision) was not mentioned, namely, that the rule of nearness in degree must first be applied before the rule of spirtual efficacy. I am bound by the decision of the Judicial Committee of which Sir Dinshaw Mulla was a member rather than by the statement in his text book which is perhaps a slip of the editors.
20. A decision of the Punjab Court reported in Ram Nath v. Duni Chand A.IAR. 1934 Lah. 622 (2) is then relied on. That decision solely rests on page 66 of Sir Dinshaw Mulla's Book and makes no reference to the Privy Council decisions. I am therefore unable to follow it.
21. The only other decision that has to be referred to is the decision in Sakharam Narayan v. Balkrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) - a judgment of three Judges (one of whom did not deliver a separate judgment). That case was decided before the Privy Council in Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : Cal. 576 : 61 M.L.J. 442 (P.C.). So the discussion in that judgment was confined only to the decision of the Judicial Committee in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 : 41 M.L.J. 676 (P.C.). Macleod, C.J. after mentioning the difficulty as to how degrees of propinquity could be compared with degrees of spiritual efficacy finally winds up by saying that under all the circumstances he prefers the father's sister's son. The judgment of Shah, J. refers to the question of spiritual efficacy and seems to be based solely on that ground. As already observed by me I do not in the least say that the rule of spiritual efficacy should not be applied to cases governed by the Mitakshara. On the other hand the decisions of the Privy Council compel me to apply such a rule but at the proper stage. In the language of Sir George Lowndes that rule is to be applied only after the rule of propinquity fails to furnish me a guide. I am unable to reconcile the decision in Sakharam Narayan v. Balkrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) with the decisions of the Judicial Committee.
22. This is the view taken by two learned Judges of this Court of that judgment. In Nucherla Changiah v. Subbaroya Aiyar (1929) 58 M.L.J. 562 it was held that the rule of spiritual benefit should be applied where the two parties are equal in degree but not where one is nearer in degree than the other. At page 565 Venkatasubba Rao, J. first refers to Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 41 M.L.J. 676 (P.C.). At p. 567 the learned Judge refers to the judgments of the Judicial Committee in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 41 M.L.J. 676 (P.C.) and takes the same view of case as I do. The learned Judge then refers to the decision in Sakharam Narayan v. Balkrishna Sadashiv (1925) L.R. 49 I.A. Bom. 739 (F.B.) and observes:
I have read the judgments in that case with close attention, but with the greatest respect I am unable to follow how they are reconcilable with the decision of the Judicial Committee in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 41 M.L.J. 676 (P.C.).
23. I would only add the other decision Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : I.L.R. 59 Cal. 576 : 61 M.L.J. 442 (P.C.) also to the last sentence. The other learned Judge also takes the same view and observes at p. 571 that the decision in Sakharam Narayan v. Balkrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) is not reconcilable with the decision of the Judicial Committee in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 41 M.L.J. 676 (P.C.). Possibly this decision in Sakharam Narayan v. Balkrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.), induced the Editors of Sir Dinshaw Mulla's book to leave the order as it stood in the prior editions. In the face of the two decisions of the Judicial Committee above referred to and particularly the second decision and its plain language I do not think these other authorities relied by the appellant should induce me to come to a different conclusion.
24. In the course of the argument reference was made to a decision of mine and Curgenven, J. in Kalimuthu Pillai V. Ammamuthu Pillai (1934) I.L.R. 58 Mad. 238 : 67 M.L.J. 503 but as it is agreed on all hands that this has no bearing on the point before us I abstain from further referring to it.
25. It is then argued by the learned Advocate-General that the phrases 'nearness in degree and propinquity' in those two decisions of the Judicial Committee have got a special meaning, that special meaning being superiority in spiritual benefit. For this contention reliance is placed on a decision of the Judicial Committee in Buddha Singh v. Laltu Singh (1915) L.R.42 I.A. 208 : I.L.R. 37 All. 604 : 29 M.L.J. 434 (P.C.) the judgment of the Board being delivered by Mr. Ameer Ali. At page 623 this sentence occurs:
Now, it is absolutely clear that under the Mitakshara, whilst the right of inheritance arises from sapinda-relationship, or community of blood, in judging of the nearness of blood relationship or propinquity among the gotraja, the test to be applied to discover the preferential heir is the capacity to offer oblations.
26. This sentence is supported by quotations from Viramitrodaya who says that when there are many claimants to the heritage among gotrajas, etc. Now in the first place the above sentence refers to gotraja sapindas. By saying so I do not mean that the rule based on spiritual efficacy is not to be considered in deciding as between bandhus. It has to be considered but at what stage is the question. For gotraja sapindas it has to be considered even before the rule of nearness. This is all that the passage amounts to. But whatever the passage may amount to, certainly it does not lay down a kind of definition for the phrases (1) nearness of blood relationship and (2) propinquity wherever those phrases occur in other judgments. That passage has to be read only in connection with that judgment. If we accept this argument, and apply it to the first sentence of the concluding paragraph of the judgment in Vedachala Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 41 M.L.J. 676 (P.C.) where it is observed that the appellant is nearer in degree to the deceased, the words 'nearer in degree' would mean - superiority of oblations. But if the first sentence is to be interpreted in that way the word 'also' in the next sentence has no significance. I think the two sentences in the judgment should be read in their natural meaning and not with reference to some sentence in another judgment, which was delivered six years before and which was not cited in it. It is true that the decision in Buddha Singh v. Laltu Singh (1915) L.R.42 I.A. 208 : I.L.R. 37 All. 604 : 29 M.L.J. 434 (P.C.) was relied on in the judgment in Jatindra Nath Roy v. Nagendra Nath Roy (1931) L.R. 58 I.A. 372 : 59 Cal. 576 : 61 M.L.J. 442 (P.C.) but not for this particular sentence. It was only relied on for the general principle that even under the Mitakshara Law the doctrine of spiritual benefit is to be looked to. If we apply the appellant's argument in interpreting the sentence page 379:
No doubt propinquity in blood is the primary test, but the intimate connection between inheritance and funeral oblations is shown by various texts of Manu (see for instance Ch. 9 vv. 136, 142, and the, viramitrodaya brings in the conferring of spiritual benefit as the measure of propinquity where the degree of blood relationship furnishes no certain guide.
27. It would mean that spiritual efficacy is the, primary test but where it fails to furnish a guide, spiritual benefit is the measure of propinquity. Both rules become one rule and there is nothing like a primary test and a secondary test; The context in the final conclusion in these two sentences shows that they are not be read with reference to some other judgment but naturally as they stand. I am therefore unable to accept the learned Advocate-General's contention based on the sentence referred to in Buddaha Singh v. Laltu Singh (1915) L.R.42 I.A. 208 : I.L.R. 37 All. 604 : 29 M.L.J. 434 (P.C.).
28. The result is that these appeals fail and must be dismissed with costs. As both are practically the same, in the second only a minimum pleader's fee of Rs. 100 will be allowed but in A.S. No. 159 we allow two sets of fees under Rule 46(2) of the Fee Rules.
29. Coming now to the third appeal namely, A.S. No. 205 of 1929 by Annapurani, I entirely agree with the judgment of my brother Stone, J., and do not wish to add any further reasons but I would only say this that one would very gladly say that Annapurani Nachiar should be regarded only as a postponed mother and not as a step-mother. But if I say so, it is not for us to say this but for the judicial Committee if the matter goes there.
30. This appeal is dismissed with costs.
31. In O.S. Nos. 1 and 3 of 1922 the plaintiff Balasubramania and fifth defendant were directed to pay a separate set of costs (estimated on the value of the suit) to the Court of Wards. This order is not justified. The Court of Wards took up a neutral position in the suits and beyond stating their attitude (which was very fair and proper) and asking for an early trial of the issues relating to the will and the adoption, had nothing more to do. In our opinion, a fee of Rs. 500 for the Court of Wards in both the suits in the Court below would be fair and the rest of the order directing plaintiff to pay the full costs in the lower Court will be vacated.
32. As the nature of the suits O.S. Nos. 1 and 3 is practically the same, it is enough to direct the plaintiff and fifth defendant, to pay full costs in one of them O.S. No. 3 of 1922 and half, costs in the other O.S. No. 1 of 1922 in the Court below.
Stone, J.
33. I have had the advantage of perusing the judgment just delivered and as to the appeals Nos. 428 of 1930 and 429 of 1930 1 propose to say nothing save that 1 agree with that judgment and have nothing to add.
34. As regards the appeals brought by Balasubramania (159 of 1929 and 411 of 1930) and Annapurani (205 of 1929), though I agree with my learned brother, the question of law in dispute being of importance I consider it desirable to express my opinion in my own words.
35. Balasubramanya Pandya Thalavar (herein written Balasubramania) and Rani Annapurani Nachiar each claims to be the nearest reversioner. The person who has been held to be the nearest reversioner is neither of these but one M. Subbayya Thevar.
36. M. Subbayya Thevar is the brother of Rani Meenakshi the wife of Hirudalaya and the adoptive mother of the last male owner (Navaneethakrishna Marudappa). Rani Annapurani Nachiar was the other, and senior, wife of Hirudalaya but was living separated from him, did not join in the adoption, and has been held by the Privy Council not to be an adoptive mother.
37. Balasubramania claims as the son of Gnanapurani Thai the daughter of Navaneethakrishna Marudappa Thevar, the maternal grandfather of Hirudalaya. The genealogical table showing only essentials is as follows:
=G. F. Navaneethakrishna=
|
________________________________________________
| | |
M | M
Periyanayaki X.Y.Z. Gomathimuthu | | |
__________| _______________ M | | | | Gnanapurani Rani Anna- =A.F. =A.M. M. Subbayya | purani Hirudalaya Meenakshi Thevar | Nachiar | Nachiar. (Claimant Balasubramania (Claimant Last Male No. 1) (Claimant No. 3) No. 2) owner
38. In the above table A. F. means adoptive father, M. mother, A. M. adoptive mother, G. F. grandfather and the sign--means married. The senior wife is shown on the left and the junior on the right. The parents of Meenakshi and Subbayya are deliberately left unnamed under the initials X. Y. Z. in order to stress the fact that there is no connection between that line and the line deriving from G.F. Navaneethakrishna.
39. It will thus be seen that one has to decide between the claims of:
1. An adoptive mother's brother.
2. An adoptive father's widow not being the adoptive mother.
3. A paternal grandfather's daughter's son.
40. I propose to take the last claimant first and contrast his rights with that of the first claimant.
41. Before examining the law I wish to put on one side an important question of fact which will have to be decided only if the conclusion arrived on the law is wrong. That question of fact is : Was Balasubramania's mother legitimate that is, was his grandmother the wife or only the concubine of Navaneethakrishna?
42. We are conscious that if our view of the law is wrong the non-determination of this question of fact may substantially protract this litigation and may require the case to come twice before the Judicial Committee. Had there been much doubt about the point we should have felt it necessary to guard against the possibility of these inconveniences by devoting a long time to the examination of the facts. Bearing in mind that this Appellate Court is still mainly concerned with Appeals of 1930 it was felt that three weeks could not be devoted to the examination of a question of fact which does not arise if the view of the law taken by us is right. As we have no doubt as to how the law stands under existing decisions of the Judicial Committee we did not feel justified in spending Judicial time in examining the question of fact. I accordingly proceed on the assumption most favourable to the appellant (and without deciding anything on the facts) that Balasubramania is a grandson legitimately descended from Navaneethakrishna.
43. It will be observed that both of the rival claimants whose claims are now being contrasted that is, Subbayya and Balasubramania fall within the class of Atma Bandhus. No question of agnatic relationship is involved. No question of more remote Bandhu classes is involved.
44. Within the class of Atma Bandhus what is the primary test? Is it propinquity of blood or is it spiritual benefit? That is the major question. As point to be considered as a step in resolving the major question is the further question, by propinquity of blood what is meant? Does one, as in English and Roman Law, determine nearness of blood relationship by going up to the common ancestor from the last male owner and coming down to the rival claimants or has nearness of blood, in India, a technical meaning he being nearest whose oblations confer the most spiritual benefit upon the departed? If the latter question is answered in the affirmative the major question ceases to be important because the propinquity of blood and spiritual benefit are not things to be contrasted; for he who gives the greatest spiritual benefit is, technically, nearest in blood.
45. That is, of course, a very artificial meaning to give to the term 'propinquity of blood' and one which, if sound, one would have expected to find laid down expressly in some judgment, if not in the ancient texts themselves. It is urged by the Advocate-General and pressed very strongly on three main grounds:
(1) The underlying idea found through the texts is that the right of inheritance is linked to the obligation to render oblations and therefore he whose oblations confer the greatest spiritual benefit is deemed throughout the texts to be the nearest in degree. Propinquity of blood is thus a complete misuse of language. Propinquity should be the term used, or rather, that term itself is unhappy, and some term like ''spiritually efficacious" should be used as the test in determining who should inherit. ' The next' is not 'the nearest in blood but 'he who is spiritually most efficacious'.
(2) This underlying idea is reflected in the rules of succession of agnates which by no means follow throughout their course the line that would be traced by applying the test of nearness of blood but do follow the line traced by applying the test of spiritual efficacy.
(3) The Judicial Committee has defined propinquity of blood as meaning spiritual efficacy.
46. I think the above is a fair condensation of the Advocate-General's very ingenious, and very strongly pressed, argument.
47. The above mentioned special definition of 'propinquity of blood' which the Judicial Committee is said to have laid down is found in Buddah Singh v. Laltu Singh (1915) L.R. 42 I.A. 208 : I.L.R. 37 All. 604 at 623 : 29 M.L.J. 434 (P.C.). The passage is as follows:
Now it is absolutely clear that under the Mitakshara, while the right of inheritance arises from sapinda-relationship, or community of blood, in judging of the nearness of blood-relationship or propinquity among the gotraja, the test to be applied to discover the preferential heir is the capacity to offer oblations-In the case of Bhyah Ram Singh v. Bhyah Ugur Singh (1870) 13 M.I.A. 373 the Board affirmed this rule in the following words : When a question of preference arises, as preference is founded on superior efficacy of oblations, that principle must be applied to the Solution of the difficulty.
48. My comment on the applicability of the above to this case is that there a different test was indicated according as one was dealing with Cognates or Agnates. Gotraja Sapindas can only be agnates.
49. With great respect I think the phrasing of the sentence 'in judging of the nearness of blood-relationship or propinquity among gotrajas the test to be applied...is the capacity to offer oblations' seems to suggest that one is seeking the nearest in blood when one is in fact seeking the nearest reversioner. Amongst agnates when one in seeking the reversioner one is seeking that one who has the greatest capacity to offer oblations : one is not seeking the nearest in blood. To define 'nearest in blood' as 'he who has the greatest capacity to offer oblations' is to give, I think, with great respect, an artificial meaning to the term 'nearest in blood'. But, however that may be, in that judgment it is pointed out that this test of nearness is a test one applies amongst gotra sapindas. It does not follow that it is a test to be applied amongst cognates, who, from the very nature of the case, are linked to the last male holder through females, who have left the old gotra and entered a new one, so that their children have very little spiritual connection with the gotra of the male owner.
50. When we turn to consider what are the tests to be applied when the rival claimants are both atma bandhus, that is, cognates we have two decisions of the Judicial Committee as our guide and it seems to me there is no ambiguity at all about what is there laid down.
51. In Vedachela Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 : 41 M.L.J. 676 (P.C.) the contest was between the propositus' mother's brother and the propositus' grandfather's daughter's son Y. It will be seen that Y was five degrees away from the propositus and X was three degrees away. Spiritually Y was completely unconnected, his oblations going to an entirely different line of ancestors namely his father and father's father, and father's father's father, and his mother's father etc. none of which is the same as the propositus' father etc. and mother's father etc. On the other hand X was spiritually connected with the propositus, the maternal grandfather of the propositus being X's father. Thus X was nearer in both senses. But if one regarded apiritual benefit as the primary test there was really nothing to argue about. Y could not be compared with X. He was no more connected with the propositus than a stranger. If that were the crucial test one would have expected his claim to have been disallowed on the broad ground that he was unconnected with the propositus except by blood, which did not arise for consideration unless it appeared that no one was spiritually connected; that as X was spiritually connected it was unnecessary to consider blood relationship at all. The actual course the trial, the arguments, and the judgments took was very different. What was being debated there was whether a claimant ex parte paterna (Y) necessarily, and because he fell within that class, succeeded over a claimant ex parte materna (X). That is to say, having divided cognates into the broad classes in ascending order, matru, pitru, atma bandhus, do you then continue with the sub-divisions (still) in ascending order of merit ex parte materna, ex parte paternal! The answer is: No.
52. In that case the four propositions enunciated by this High Court in Muttusami v. Muttukumarasami (1892) I.l.R. 16 Mad. 23 at 30 : 2 M.L.J. 296 were approved. Of these rules the fourth is 'as between bandhus of the same, class, the spiritual benefit they confer upon the propositus is a ground of preference'.
53. That, of course, assists the Advocate-General's argument. The question is should one read for 'a ground of preference' the words 'the primary test when determining preference'. The four rules, it will be noticed do not even glance at nearness in blood as a ground of giving preference between claimants both of the atma bandhu class.
54. The Judicial Committee in the case now being referred to make clear, in my opinion, how they regarded the matter. First of all amongst cognates one makes three major divisions: (1) one's own (atma), (2) one's father's (pitru), (3) one's mother's (matru) bandhus. Why? Because (page 759) of propinquity.
55. Now if one regards propinquity as meaning nearness in blood it is obvious that does not necessarily postpone matru to pitru though it does necessarily postpone pitru and matru to atma other things being equal. The postponement of the matru class to the pitru must therefore depend on some factor other than nearness of blood. Is it the special merit belonging to the father idea which makes everything connected with the father, in this branch of law, more efficacious than things connected with the mother? If so when sub-dividing a class should one again divide claimants into those who are connected through the father (ex parte paterna) and those who are connected through the mother (ex parte materna) regarding the father-connection as so much more important than the mother-connection that all in the former class are preferred to all in the latter class irrespective of nearness of blood or spiritual benefit? The answer again is : No.
56. The matter was further considered, by the Judicial Committee in a case reported in Jotindra Nath Roy v. Nagendra Nath Roy (1930) 61 M.L.J. 442 (P.C.)
57. That case, in my opinion, lays down three rules to apply for determining who is entitled to succeed where the claimants are all atma bandhus, namely.
1. The primary test is propinquity in blood. If that fails then.
2. He comes first whose oblations are more spiritually efficacious. If that fails then.
3. Those ex parte paterna are to be preferred to those ex parte materna.
58. The language used is quite free from ambiguity and the appellant fails in my opinion unless that language is wrongly used. Thus at page 447 their Lordships say:
It is-a mistake to suppose that the doctrine of spiritual benefit does not enter into the scheme of inheritance propounded in the Mitakshara. No doubt propinquity in blood is the primary test but the intimate connection between the inheritance and funeral oblations is shown in various texts of Manu and the Viramitrodaya brings in the conferring of spiritual benefit as the measure of propinquity where the degree of blood relationship furnishes no certain guide.
59. The Italics are mine. It seems to me too clear for argument that there the Judicial Committee is saying the first test is nearness of blood amongst atma bandhus. If that test fails because both claimants are equally near in blood, as in that case, then you consider spiritual efficacy. I gather from pages 447, 448, that if that test fails then you go to the ex parte paterna rule. The paragraph on page 449 beginning ' their Lordships' and ending ' preferential heirs' must I think be read as making spiritual efficacy a test of propinquity only when the primary test or nearness of relationship fails.
60. It is said, and rightly, that Sakharam Narayan v. Balakrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) and Ram Nath v. Duni Chand A.I.R. 1934 Lah. 622 (2) are against this view which is also contrary to the observations made in a well-known text book, edited by a late member of the Judicial Committee Sir Dinshah Mulla. As Ram Nath v. Duni Chand A.I.R. 1934 Lah. 622 (2) is a decision of a Bench one member of which is at present a Member of the Judicial Committee and as Mulla's Principles of Hindu Law does undoubtedly contain at page 69 a table which places maternal uncle as number 10 and a father's father's daughter's son as No. 6, it is necessary to consider the difficulties created by these authorities.
61. The report in Ram Nath v. Duni Chand A.I.R. 1934 Lah. 622 (2) is very short and appears to amount to little more than a statement that the law is as laid down in Mulla's Principles of Hindu Law for which there is authority presumably Sakharam Narayan v. Balakrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.). The Privy Council decisions are not referred to. As to the statement of tables in Mulla's Principles of Hindu Law I agree with what my learned brother has said.
62. In Sakharam Narayan v. Balakrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) it was held that in the Bombay Presidency a father's sister's son succeeds in preference to a maternal uncle. That case was treated by a Bench of this High Court in Chengiah v. Subbaroya (1929) 58 M.L.J. 562 at 567 as irreconcilable with Vedachela Mudaliar v. Subramania Mudaliar (1921) L.R. 48 I.A. 349 : I.L.R. 44 Mad. 753 : 41 M.L.J. 676 (P.C.). With that criticism I respectfully agree. It is only possible to arrive at the conclusion arrived at in Sakharam Narayan v. Balakrishna Sadashiv (1925) I.L.R. 49 Bom. 739 (F.B.) by making spiritual efficacy amongst bandhus of the same class the primary test. The Privy Council have said that ' no doubt' nearness of blood relationship is the primary test and only on that failing does one go to the spiritual efficacy test.
63. In these circumstances I apply as the primary test nearness of blood relationship using that term in the ordinary sense. That gives precedence to the respondent to appeals 159 of 1929 and 411 of 1930 which accordingly fail.
64. The next case raises an interesting point which had it been a case of first impression I should have struggled hard to find a reason to prefer the claim of Annapurani.
65. The contest is now between the maternal uncle and a widow of the adoptive father. It must be made quite clear that this widow is not an adopting mother. The first question is : Is Annapurani (to use a term introduced in this case) a postponed mother, or only a step-mother? If a step-mother is she, as a gotra sapinda, in the class of agnates having a right to inherit and therefore entitled to succeed before any cognate?
66. It is admitted by Counsel, and it is indeed apparent that he has got a long line of authorities against him, but he urges that there is no Privy Council decision upon the point and although there is a Full Bench decision of this Court which binds us still it is a matter open for argument before the Judicial Committee and our function is either to follow the Full Bench, or if we doubt that, refer the matter to a Full Bench, and in any case keep the point open for argument hereafter.
67. The starting point of the first branch of the case is necessarily Annapurni Nachiar v. Forbes (1899) L.R. 26 I.A. 246 : I.L.R. 23 Mad. 1 : 9 M.L.J. 209 (P.C.) where the Judicial Committee decided, as between Annapurani and Meenakshi, who was the adoptive mother. That case decided that on the death of the last male owner Meenakshi as adoptive mother succeeded in preference to Annapurani. What we have now to decide, Meenakshi being dead, is who is the next reversioner to the same last male owner. Is it Annapurani or is it Meenakshi's brother? The fact that Meenakshi's brother is a thoroughly worthless person and a man who in Meenakshi's life time caused endless trouble is, of course an irrelevant consideration save that, all other things being equal, he is not the sort of person to let in to the succession if worth were a relevant factor.
68. The argument, or rather this branch of it, seeks to establish that Annapurani is a mother but one postponed to Meenakshi. It is said that where a man with two wives adopts a boy both the wives are mothers. If he associates one in the act of adoption that one is preferred and the other 'postponed'. This is the sense in which the term 'postponed mother' is used. That is to say Annapurani counts as against the world as a mother, but as against the co-wife she comes after her. If this were sound her position as a reversioner would be next after the adoptive mother because she would come in the class 'mother', a class entitled to come in as being specifically named in the texts. She would thus rank as number 7, but she would take a limited estate so that on her death the reversioner once again would be found by going back to the last male owner. This, of' course, is why Meenakshi being dead we go to the next heir to the last male owner instead of to the heir to Meenakshi.
69. If on the other hand Annapurani is a step-mother then a whole line of authorities has to be set aside before one could admit her to inheritance at all. As the authorities at present stand she is not a competitor. If those authorities are set aside then, because by marriage into the gotra of the last male owner's family she is an agnate she would come in the agnatic class and it is said would therefore come before any bandhus. It is clear that sapindas take before Samanodakas who in turn take before bandhus. The jump made by the argument is, of course, in assuming that because a person is a gotra sapinda, that person has necessarily a right to inherit.
70. At pages 6, 7, 8, their Lordships in Annapurni Nachiar v. Forbes (1899) L.R. 26 I.A. 246 : I.L.R. 23 Mad. 1 : 9 M.L.J. 209 (P.C.), consider the hypothetical case put by Sir W.H. Macnaghten of the man with three wives who dies leaving three widows to one whom he gives authority to adopt. Who succeeds to the adopted? Does the adopting mother or do all three? He seekes to resolve that conondrum, upon which the texts are silent, by posing another case, this case, where instead of giving authority to one widow he himself adopts What then? Sir W.H. Macnaghten arrives, in the opinion of the Judicial Committee, at a wrong conclusion because he assumes that in such a case the man could not select one of his wives as adopting mother and so all three would be adopting mothers. Granted that, it would appear to follow that the fact that the adoption is done under authority by one widow would make no difference and so the conclusion is arrived at that all three widows would be adoptive mothers.
71. The validity of the assumption being denied the conclusion is also denied. Further the passage quoted from Sir W.H. Macnaghten's Preliminary Remarks at pages 7, 8 of Annapurni Nachiar v. Forbes (1899) L.R. 26 I.A. 246 : I.L.R. 23 Mad. 1 : 9 M.L.J. 209 (P.C.) is somewhat in conflict with his assumption that a man in his lifetime cannot prefer one wife and make her alone the adoptive mother. The Judicial Committee for these and other reasons arrived at the conclusion that a man can so prefer one wife and can make her the adoptive mother so that {see page 7, lines 18, 19) she has male issue and the other wives have not.
72. If that is so it is my opinion that the Privy Council was placing these two ladies in the following position: Meenakshi could, by her husband, be placed in the position of adoptive mother without Annapurani being placed in the position of adoptive mother. By a fiction Meenakshi having been put in that position she becomes a woman with male issue, Annapurani does not. The two ladies are thus in the same position as they would be if Meenakshi had given birth to a son and Annapurani had not. That is the same as regarding Meenakshi as the mother and Annapurani as the step-mother. I therefore, with regret, reject the 'postponed' mother idea.
73. Now if Annapurani is a step-mother we go to the line of cases which exclude step-mothers from the inheritance.
74. Before doing so, however, it is necessary to mention an analogy and to make a preliminary observation. In two events it becomes necessary for the ancient texts to provide for the transfer of joint Hindu family property and it is, I think, clear that they are concerned to provide fairly (bearing in mind certain ideas strange to European thought and in particular the small importance of women and the great importance of the gotra) for everybody who would normally be dependent for their subsistence upon the joint family estate. It is not their purpose to overlook some class so that that class of necessity starves. Women in particular, though taking little, because their needs are supposed small, are not ignored. For to ignore them would be to condemn them either to starve or to subsist on charity for, of course, it was not imagined that they could earn their own living.
75. The two events above named are partition and death of the male owner. On partition it is made clear by the texts that mother includes step-mother. (These rules are absolute in Madras but that does not invalidate the argument.) See Setlur Part I, p. 130, Section 100. 'The childless wives of the father are declared to take equal shares with the sons'. A statement that involves step-mothers for if there are sons and childless wives the conclusion is obvious, a conclusion that is underlined in Sections 108 and 109. "The meaning is that a partition instituted by the sons after the father's death, a mother having no stridhanam of her own takes a share equal to that of a son.... Here the word 'mother' is used to include her co-wives". Again, when dealing with partition the Smriti Chandrika Ibid. p. 234, Section 14 says "The word 'mother' includes a step-mother". So also at p. 326, Section 36. The reason is clear. The lawgivers are dealing with ladies without possessions of their own and are guarding them, upon a partition, from being left penniless.
76. Do similar considerations arise on the death of the last male owner? There the mother is clearly provided for but only after a variety of others. What is her position if for instance the last maleholder leaves a son? Clearly the son takes to the exclusion of the mother, let alone the step-mother. What happens to the mother in the meantime? The answer I think is to be found in the fact that she is not only a mother but also, of necessity for the point to arise, a widow. She has her widow's right of maintenance, a right that is quite apart from her mother's right of inheritance.
77. Thus it is not necessary to give her rights of inheritance to save her from starvation.
78. I now pass to Mari v. Chinnammal (1884) I.L.R. 8 Mad. 107 (F.B.) where the contest was between a paternal uncle and a step-mother that is, between two agnates whereas here the contest is between a cognate and an agnate.
79. In that case (see bottom of p. 120, top of p. 121) the claim of the step-mother was put first on the ground that if one wife bears a child all become mothers of male issue (Manu ix 183). She is postponed to the natural mother because of the doctrine of the half blood, when the natural mother is dead then the step-mother comes in. This is merely the postponed mother's argument above examined.
80. It was put next on the ground that she was anyhow a gotraja sapinda. Her right so to succeed was allowed in Bombay in Kesserbai v. Valab Raoji (1879) I.L.R. 4 Bom. 188 at 208. It appears also to have been allowed in early decisions of the Sadar Dewani Adalat. These early decisions were doubted by Sir W.H. Macnaghten (Select cases 39, 42). A Full Bench of the Calcutta High Court denied the step-mother's right to succeed under the Mitakshara Lala Joti Lal v. Mussamut Durani Kowar (1864) B.L.R. (Sup. Vol.) P. 67. Both in Kumaravelu v. Virana Goundan (1879) I.L.R. 5 Mad. 29 and Muttammal v. Vengalashmi Ammal (1882) I.L.R. 5 Mad. 32 by Benches of this High Court the stepmother's right to inherit was rejected.
81. If Kumaravelu v. Virana Goundan (1884) I.L.R. 8 Mad. 107 (F.B.) is referred to it will be found to turn on the view that (1) step-mother is not a mother within the Mitakshara Ch. II, Section iii(2) a step-mother is not a sapinda at all in the Dayabaga sense (connection by funeral cake) or in the Mitakshara sense (of one body). Muttammal v. Vengalashmi Ammal (1882) I.L.R. 5 Mad. 32 follows the above but adds that she might possibly succeed as a bandhu, thus rejecting her claim to be regarded as a gotra sapinda.
82. Mari v. Chinnammal (1884) I.L.R. 8 Mad. 107 (F.B.) on the other hand regards her as a gotraja sapinda on the ground that, as she is a wife as well as a step-mother, the fact that she has married into the gotraja makes her a sapinda of her husband and hence of his son. If she is a sapinda it seems clear that she is a gotraja sapinda. If her right of inheritance is to be derived from her gotraja sapindaship by parity of reasoning all the wives of agnates are also brought in. All are agnates, and all come in before cognates. Thus the second wife of a paternal uncle's grandson would come before a sister's son, the former being a gotraja sapinda and the latter a cognate.
83. In Lalloobhoy Bapoobhoy v. Cassibai (1880) L.R. 7 I.A. 212 : I.L.R. 5 Bom. 110 (P.C.) the contest was between the widow of a paternal first cousin and two males described as 'on the extreme verge of sapinda relationship' namely, seven in descent from a common ancestor six in ascent from the last male holder. That was an appeal from Bombay. It was recognised by the High Court of Bombay that the law prevailing in Madras was opposed to the widow's claim. They relied on the texts of Manu, the Mitakshara and the Mayukha. As to Manu the text relied upon was 'to the nearest sapinda male or female, after him in the next degree the inheritance next belongs; then on failure of sapindas and their issue, samannodaka or distant kinsmen shall be the heir'.
84. In Madras following a text of Baudhayana it was long the accepted doctrine that women are incompetent to inherit unless specially named. This was stated to be the position in Madras at the time of the above mentioned Privy Council decision (see p. 118). It had however already been departed from (for reasons which I shall mention) in a case relating to a cognate by a bench of this High Court in 1875 in Kutti Ammal v. Radhakristna Aiyan (1875) 8 M.H. C.R. 88 (sister). This was followed in a series of decisions namely, Lakshmanammal v. Tiruvengada Mudali (1882) I.L.R. 5 Mad. 241 (half sister); Nallanna v. Ponnal (1890) I.L.R. 14 Mad. 149 : 1 M.L.J. 46 (son's daughter) Ramappa Udayan v. Arumuga Udayan (1893) I.L.R. 17 Mad. 182 : 4 M.L.J. 30 (daughter's daughter); Venkatasubramaniam Chetti v. Thayaramma (1898) I.L.R. 21 Mad. 263 (brother's daughter); Narasimma v. Mangamma (1889) I.L.R. 13 Mad. 10 and Chinnammal v. Venkatachala (1892) I.L.R. 15 Mad. 421 : 2 M.L.J. 86 (father's sister). These came in [before the passing of the Hindu Law of Inheritance (amendment) Act 1929] after all male bandhus. Rajah Venkatanarasimha Appa Rao Bahadur v. Rajah Surenani Venkata Purushothama Jagannadha Gopala Row Bahadur (1908) I.L.R. 31 Mad. 321 : 18 M.L.J. 409.
85. Thus by that series, when dealing with Bandhus, that is, cognates, women have, in Madras, been admitted to the succession though not named in the texts. Thereby it would seem that the text of Baudhayana has been departed from. By parity of reasoning it is said it should be departed from in the case of females in the same gotra that is in favour of the widows of all male sapindas. It is further said that this class should be admitted in the same way as female cognates have been admitted namely, at the very end of the appropriate class. But in the case of female cognates the appropriate class is the class of bandhus; in the case of a female in the same gotra the appropriate class is the class of cognates. Therefore these widows should all come before any male cognates.
86. As the Judicial Committee points out at p. 121 of Lallubhai Bapubhai v. Cassibhai (1880) L.R. 7 I.A. 212 : I.L.R. 5 Bom. 110 (F.C.) after considering what is meant by sapinda relationship, 'the wife upon her marriage enters the gotra of her husband, and thus becomes constructively in consanguinity or relationship with him, and through him, with his family'. That being so it is observed 'there would appear to be nothing incongruous in her being allowed to inherit as a member of that family under a scheme of inheritance which did not adopt the principle of the general incapacity of women to inherit'.
87. It is then observed that the existence of the right to inherit has still to be established. Then it is pointed out that that right (if it exists at all) must be based upon her position as a gotraja sapinda. It was held in that case that she has that right and has it in priority to a very remote male gotraja sapinda. It seems to follow that in Bombay she comes in before any cognate.
88. Now that case is not reconcilable with Mari v. Chinnammal (1884) I.L.R. 8 Mad. 107 at 127 (F.B.) in my opinion except upon the basis that the law in Bombay is different from the law in Madras. At that time it was the accepted view that it was different. The difference (apart from usage) lay in the fact, noted at p. 127 of Mari v. Chinnammai (1884) I.L.R. 8 Mad. 107 at 127 (F.B.) that in this Presidency, at that time, the rule was followed that females are incompetent to inherit. That is females have no right, as such, to succeed. Their right such as it is, depends on their being within a named class. As I have observed that view had already been departed from in Kutti Ammal v. Radakristna Aiyan (1875) 8 M.H. C.R. 88.
89. It was held by the Full Bench in Mari v. Chinnammal (1884) I.L.R. 8 Mad. 107 at 127 (F.B.) (By Turner, C.J., Kerrian and Hutchins, JJ.) that no right to succeed is obtained by a woman who by marriage has entered the gotra and acquired sapindaship solely through the husband. Consequently the step-mother's right to succeed was negatived not merely on the ground that her right to succeed was postponed to that of the paternal uncle, but on the ground that she had no right to succeed at all. See p. 129
90. Muthuswami Aiyar, J. while generally concurring makes it clear that she is not a 'mother' that she is a gotraja sapinda but that, being a woman, though a gotraja sapinda, she has no right to inherit unless she falls within a named class. The only named class she could fall within would be that of 'mother' and, as she is not a mother, she has no right to inherit. The basis of this is the above quoted text which appears to me to have been departed from by the line of cases that lets in cognate females.
91. In Seethai v. Nachiar (1912) I.L.R. 37 Mad. 286 : 26 M.L.J. 10 the position that was taken up by the claimant step-mother was two-fold (1) she was entitled to inherit as a gotraja sapinda; alternatively, (2) she was entitled to inherit as a bandhu. Her right under either head was denied and it was declared that she came nowhere in the line of succession; that the property should go to the Crown in preference to her. This, of course, is the extreme position. The view that was taken of Mari v. Chinnammal (1884) I.L.R. 8 Mad. 107 at 127 (F.B.) which I have above indicated is my view of that decision namely that it did not merely postpone the step-mother but declared that she had no right to inherit at all. It is not necessary to consider that case further. Whether one agreed or disagreed with the conclusion that a step-mother cannot come in as a bandhu it would not assist the claimant here for there is here a rival who would come before her if that is the ground in which her claim is based.
92. In Nanhi v. Gauri Shankar (1905) I.L.R. 28 All. 187 it was held that no female not expressly named in the Mitakshara as heir has a right of inheritance and so a son's daughter was declared to have no right to inherit from her grandfather. This decision is contrary to the line of Madras cases above mentioned which let in female cognates. In Tahaldai Kumri v. Gaya Pershad Sahu (1909) I.L.R. 37 Cal. 214 and Rama Nand v. Surgiani (1894) I.L.R. 16 All. 221, it was decided that a stepmother, not being a 'mother' is not in a named class and not being in a named class has no right to inherit.
93. There is thus a very long line of cases all consistent so far as Madras is concerned, special usage or custom not being shown, for the views (1) that a step-mother is not a mother, (2) not being a mother she is not in a named class, (3) not being in a named class and being a woman and a gotraja sapinda and not merely a cognate she has no right to succeed and (4) though not within a named class though a woman if a cognate she may succeed after male bandhus.
94. There remains the difficulty created by the series of cases commencing as long ago as 1875 which let in female cognates that is, the difference between (3) and (4) above. It will be noticed that in every case in which a woman has so been let in she is a woman born in the family. I find it a little difficult to see the logical basis for the distinction. If a woman, whether of the family by marriage or by birth is not within a named class, and if the texts restricted inheritance in the case of females to those within a named class, I should have thought that either both groups of women were excluded or that both groups of women could be included. But granting this why were the women born in the family included? A reference to Kutti Ammal v. Radakristna Aiyar (1875) 8 M.H.C.R. 88 and Lakshmanammal v. Tiruvengada Mudali (1882) I.L.R. 5 Mad. 241 makes it clear. I think, that they were admitted as bandhus in view of the decision of the Judicial Committee in Girdari Lall Roy v. The Bengal Government (1868) 12 M.I.A. 448 to the effect that the Mitakshara Chap. II, Section 6 does not purport exhaustively to enumerate all the bandhus capable of inheriting and therefore the mere omission of for example, a sister is not conclusive. On the other hand the enumeration of the classes of females who can inherit as sapindas has been treated in this Presidency as complete and it does not contain the term 'stepmother' she finds no place, no place as a bandhu because she is not a bandhu; no place as a gotraja sapinda because she is not within the exhaustive list of named females. The letting in of the female cognates is thus not a departure from the age-long position taken up in this Presidency that amongst sapindas the classes of women having the right to inherit are restricted to widow, daughter, mother, grandmother, etc.
95. In these circumstances I am clearly of the opinion that if any change is to be made in the rights of a step-mother to inherit it must be made either by legislation or by a Court able to review and reverse the long chain of cases I have referred to which exclude the step-mother.
ORDER
96. The Court of Wards have now sent their reply confirming the will. The plaintiff in (O.S. No. 2 of 1922) will therefore have a decree for all the savings of the estate in the hands of the Court of Wards that is whatever form they might be existing and the jewels, silver vessels, furniture and other moveables including cash in the hands of the Rani at the time of her death, with further interest on the savings including the cash with the Rani from the date of the death of the Rani after deducting the funeral expenses which it is agreed, amount to Rs. 3,000. This will not include the funds of the Devasthanams.
97. The District Court may determine the actual figure to which the plaintiff is entitled, in execution.
98. As to the interest, the actual interest earned by the Court of Wards and afterwards during the time the bonds and money were lying in deposit under the direction of the District Court will be allowed. Some amount is drawn by the respondent and on that amount, if it came out of the savings 6 per cent, will be allowed from the date of drawing.
99. The jewels, vessels, lace cloths, samans, etc. as described in Ex. TTT will be delivered to the plaintiff excluding the jewels and vessels devoted to the Hirudalaya temple, (vide Schedule I to Ex. OO) and any other Devasthanams.
100. The parties will give and take proportionate costs here and in the Court below.
101. The trusteeship of the Hirudalaya temple and the jewels bequeathed for the benefit of that temple under Schedule I of the will have not been the subject of any issue in this case and we do not decide it. The parties, if so advised, may settle that dispute in another suit. Meanwhile the jewels given for the benefit of that temple will remain in deposit under the directions of the District Court.
102. On the portion as to which the appellant in A. Section No. 428 of 1930 has succeeded, the respondent (Subbayya Thevan) will pay the proportionate court-fee to Government. On the disallowed portion, the appellant himself will pay the court-fees. As to Appeal 429 of 1930, the appellant will pay Rs. 500 to Government.
103. In O.S. No. 2 of 1922, the order of the Court below directing the plaintiff to pay full costs to the Court of Wards will be vacated. There will be no separate order as to costs of the Court of Wards in this suit. The plaintiff in this suit will be liable along with the plaintiff in O.S. No. 1 of 1922 for the Rs. 500 decreed to the Court of Wards in all the litigation.
No comments:
Post a Comment