Rajah Velugoti Kumara Krishna
Yachendravaru & Ors Vs. Rajah Velugoti Sarvagna Kumara Krishnayachendra
Varu & Ors [1969] INSC 311 (28 October 1969)
28/10/1969 RAMASWAMI, V.
RAMASWAMI, V.
SHAH, J.C.
GROVER, A.N.
CITATION: 1970 AIR 1795 1970 SCR (3) 88 1969
SCC (3) 282
CITATOR INFO:
R 1973 SC2438 (4) RF 1981 SC1937 (24,25) D
1982 SC 887 (20,22,23,25)
ACT:
lmpartible Estate-Venkatagiri
Estate-linpartible by custom- Impartible Estates Act, 1904 including estate in
Schedule- Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948
vesting estate in Government-Whether impartibility continues in respect of
properties not to vested-Impartible estate, incidents of.
HEADNOTE:
The appellants filed a suit for partition
claiming their share in certain properties of the Venkatagiri Estate which did
not vest in the State by virtue of the Madras Estates (Abolition and Conversion
into Ryotwari) Act, 1948 and in the alternative for maintenance in terms of an
agreement entered into in 1899. Their contention was that the Venkatagiri
Estate became an impartible estate only under the agreement entered into in
1889 and became a statutory impartible estate by virtue of its inclusion in the
schedule to the Impartible Estates Act, 1904 and on the repeal of that enactment
by the Abolition Act, 1948, the estate became partible; that the properties
claimed in the suit, though outside the territorial limits of the Zamindari,
were held impartible only as appurtenant to the main estate and after the
impartible character of the main estate was lost those properties became
partible. The High Court held that the estate was impartible by custom and was
not made impartible for the first time under the agreement of 1889 or by the
Acts of 1902 or 1904 and the claim for partition was negatived. As regards the
claim for maintenance the court held that a similar claim had been rejected by
the judicial committee as not tenable either under the agreement of 1889 or
under Hindu law or on the basis of custom. In appeal to this Court,
HELD : (i) There is no reason to differ from
the finding of the High Court that the estate of Venkatagiri was an ancient
impartible estate by custom and was not made impartible for the first time
under the agreement of 1889 or by Madras Acts of 1902 or 1904. [100 A] Gopala
Krishna v. Sarvarna Krishna, 1955 A.W.R. 590, Nargunt Lutchmedavanah v. Vengama
Naidoo, 9 M.I.A. 66, Raja Ras Venkata Mahipathy Ramkrishna v. Court of Wards
I.L.R. 2 Mad.
283 and Pushavathi Viziram Gajapathy Rai
Maina v, Pushavathi Viseswar, [1964] 2 S.C.R. 403, (ii) In relation to
Venkatagiri Zamindari the Madras Impartible Estates Act has been repealed so
'far as the Act applied to the Estate which by operation of s. 3(b) of the
Abolition Act got transferred and became vested in the State Government. In
'relation to properties which have not become so vested in the Government the
Madras impartible Estates Act, 1904 continues to be in force. Since the
Abolition Act did not affect the plaint properties these have continued to be
what they were at the time of incorporation with the Zamindari, namely. the
properties retain their impartible character. The principle cossante ratione
legis- 89 cessat ipsa lex has no application in the present case for many times
custom outlives the condition of things which give it birth. The junior members
of a joint family in the case of ancient impartible joint family estate take no
right in the property by birth and, therefore, have; no right of partition
having regard to the nature, of the estate which is impartible. [102 D-H, 103
H, 104 E-F] Rai Kishore Singh v. Mst. Gahanabai, A.I.R. 1919 P.C. 100, C. 1. T.
Punjab v. Dewan Krishna Kishore, 68 I.A. 155 and Raja Velugoti v. Raja
Rajeshwara Rao, 68 I.A., 181, (iii) The agreement of 1889 in so far as it
relates to payment of maintenance continues to be in force in spite of the
coming into operation of the Abolition Act. In the absence of express words to
the effect, it would not be right to attribute to the legislature an intention
to free the properties not transferred to the Government by the operation of s.
3(b) of the Act from liability to contribute towards the maintenance of the,
junior members under such a contract or family arrangement, and while leaving
the land- holder in possession of those other properties, limit the,
maintenance holders to a share of a fifth of the compensation amount.
[109 C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 2113 of 1966.
Appeal from the judgment and decree dated
August 13, 1965 of the Madras High Court in O.S.A. Nos. 40 and 53 of 1961.
C. R. Pattabhiraman, V. Suresham and S.
Balakrishnan, for the appellants.
V. Vedantachari -and K. Jayaram, for
respondent No. 1.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal arises out of a suit O.S. 351 of 1952 filed for
partition by 7 plaintiffs viz. : (1) Sri Raja Venkata Kumara Krishna Yachendra,
(2) Sri Rajah V. V. Ramakrishna, (3) Sri Raja V. V. Rajagopala Krishna, (4) Sri
Raja V. V. Muvva. Gopala Krishna, (5) Sri Raja V. Rajeswara Rao, (6) Sri Rajah
V. Maheswara Rao and (7) Sri Raja V. Madana Gopala Krishna, minor by next
friend and mother Smt. Sridevamma in respect of the Venkatagiri Estate and
other properties as accretions to this estate. The first defendant in the suit
was the holder of the zamindari until it was notified and taken over by the
State on September 7, 1949. The 3rd and 4th defendants are brothers of the
first defendant. The third defendant died during the pendency of the suit and
defendants 7 and 8 are his sons. Defendants 4, 5 and 6 are the sons of the 4th
defendant. The 9th and 10th defendants are the sons of the 1st defendant. The
4th plaintiff Shri Raja V. V. Muvva Gopala Krishna died during the pendency of
the appeals against the suit in the High Court of Madras. After the filing of the
petition of appeal in this Court Sri Raja V. Maheswara Rao, L6Sup. C.I./70--7
90 the 6th plaintiff also died. The relationship of the parties will appear
from the following pedigree Sri Rajah Velugoti Kumara Yachendra Nayudu Bahadur
Raj Rajagopalakrishna Muddu Krishna Venkata (diedissueless Krishna in1921 )
(died in 1916) Krishna Bahadur Raja Govinda Krishna (plff.1) (died in 1937) V.
V.Rama Krishna Raja V Sarvagna (plff.2) Krishna V.V. Raja GOPALAKRISHNA (deft)
(DLFF NO.3) D-9 V.V. Morva D-10 Gopalakrishna (dlff.4) Second prince Third
prince D-7 D-8 D-4 D-5 D-6 (II) Venu Gopla Rajeswara Rao Maheswara Rao (plff.
5) (plff. 6) Madana Gopala (Minor) by next friend and mother Sreedevi (Plff. 7)
(III) Rama Krishna Rao Seshchala pathi Vekata Lakshmana (adopted to Ranga Rao
Rao Pithapur) (adopted to (adopted away) Bobbili) The Venkatagiri Estate is an
ancient impartible estate in Nellore District included in the Schedule under
the Madras Impartible Estates Act (Act II of 1904). In the year 1878, Raja
Velugoti Kumara Yachema, who heads the above pedigree, was 91 the Zamindar. He
had seven sons of whom three had been given away in adoption. The eldest of the
sons was Rajagopala Krishna to whom Raja Velugoti Kumara Yachama handed over
the entire estate and certain other properties with a view to spend the rest of
his life in piety and meditation. In 1889, Muddukrishna and Venkata Krishna,
two of the sons, claimed a share in the estate contending that the estate was
partible and the four sons were each entitled to a fourth share in the family
properties.
Rajagopalakrishna, however, asserted its
impartible character. Ultimately there was a settlement between the parties
wherein Muddu Krishna and Venkata Krishna withdrew their claim to partition and
recognised the impartible character of the Zamindari. The settlement involved
the payment of large sums of money by Rajagopala Krishna to his three younger
brothers Muddu Krishna, Venkata Krishna and Venugopal. Venugopal was then a
minor and was represented by the father Raja Velugoti Kumara Yachama himself.
The terms of the settlement were embodied in a stamped document bearing the
date April 8, 1889. Its terms may be summarised as follows : (a) recognition by
all the brothers that the Venkatagiri estate-was impartible with descent along
the eldest line, that is, by Rajagopala Krishna the then Zamindar and after him
by his son, son's son and so on in the eldest male line; (b) the three brothers
of the then Rajah, Muddukrishna, Venkata Krishna and Venugopal, should each
receive a sum of Rs. 5,81,252-11-10; (c) Muddu Krishna, Venkata Krishna and
Venugopal should also receive a sum of Rs. 40,000 each for providing themselves
with residence; (d) a provision for the marriage expenses of Venkata Krishna
and Venugopal and (e) provision that Rajagopala Krishna and his successors to
the estate should pay to Muddukrishna, Venkata Krishna and Venugopal a sum of
Rs. 1,000/- each per mensem for life -and on their death a similar amount to
their male descendants (Purusha Santhathi) by way of allowance, the amount
payable to each branch being Rs. 1,000/- irrespective of the number of
descendants.
Venugopal, the last of the four brothers,
never married and plaintiffs 5 -and 6 to the suit are his illegitimate sons.
In 1932 plaintiffs 5 and 6 instituted a suit
against the Estate (O.S. No. 30 of 1932) claiming maintenance allowance and
relying upon the agreement of 1889 and in the alternative on custom and Hindu
law. The Subordinate Judge found that custom was not proved and that they were
not entitled to maintenance under the Hindu law. But he found that the
claimants were entitled to the maintenance under the deed as Purusha Santhathi.
On 'appeal the High Court agreed with the finding of the trial Court as regards
the absence of any custom but differed from the interpretation of Purusha
Santhathi and held that the term was applicable only 92 to legitimate sons and
not to illegitimate sons. The High Court, however, took the view that the
plaintiffs 5 and 6 were entiled to maintenance under the Hindu Law. The
judgment of the High Court is reported in Maharaja of Venkatagiri v. Raja
Rajeswara Rao(1). The matter was taken in appeal to the Judicial Cornmittee and
the Judicial Committee allowed the appeal of the Rajah holding that the
illegitimate sons of Venugopal were not entitled to maintenance either under
the agreement of 1889 or under the Hindu law. The decision of the Judicial
Committee is reported in Raja Krishna Yachendra v. Raja Rajeswara Rao(1).
At the time of the notification. of the
estate under the Madras Estates (Abolition and Conversion into Ryotwari) Act,
1948 (Act 26 of 1948) (hereinafter called the Abolition Act), the first
defendant in the suit held the estate and was the principal landholder under
the Act. Under s. 66 of the Abolition Act, on and from the notified date, the
Madras Impartible Estates Act, 1904 (Act 2 of 1904) shall be deemed to have
been repealed in its application to the estate. Out of the advance compensation
first deposited, plaintiffs 1 to 4 had been paid a sum of Rs. 75,000/as
maintenance holders under s. 45 of the Abolition Act. They were entitled under
the Act to a further sum of Rs. 75,000/- in the second instalment of
compensation and a share in such additional compensation that may be given.
They were also given interim payments at Rs. 9,000/- per year under s. 50 of
the Abolition Act. Under s. 47 of the Act they were also entitled to ryotwari
patta.
The case of the plaintiff was that the
Venkatagiri Estate became an impartible estate only under the agreement of 1889
between the parties and became a statutory impartible estate by virtue of its
inclusion in the Schedule to the Madras Impartible Estate Act, 1904 and that on
the repeal of that enactment by s. 66 of the Abolition Act the Estate became
partible. The contention of the plaintiffs was that as junior members of a
joint family they were entitled to a share in the compensation amount and also
to a share in Schedule B properties which were not vested in the State
Government. So far as the claim to a share in the compensation amount is
concerned, there were proceedings under the Abolition Act itself. The suit was
principally confined to the claim for a share, in the B Schedule properties and
for -an alternative claim for maintenance at Rs. 1,000/- p.m. So far as the B
Schedule properties are concerned, the claim was confined to shares in three
items of immovable properties namely (1) Motimahal No. 187, Mount Road, Madras,
(2) Venkatagiri Rajah's Bungalow at Nellore and (3) Venkatagiri Rajah's
bungalow at (1) I.L.R. [1939] mad. 622.
(2) I.L.R. [1942] mad. 419.
93 Kalahasti. Out of the movable properties
the claim was confined to sub-item8 of item 8 of the B Schedule, that is, a
golden howdah. It is the case of the plaintiffs that the repeal of the
impartible Estates Act by virtue of the notification will have the effect of
changing the character of the properties in the B Schedule and making them
partible. It was contended that even if for any reason the plaintiffs are not
granted a share in the properties of the estate, they must be paid a sum of Rs.
1,000/- per mensem in terms of the original agreement of April 8, 1889.
The trial Judge, Subramaniam J., held that
the Venkatagiri Zamindari was impartible by custom even apart from the
agreement of 1889 and the Impartible Estates Act of 1902 and 1904. Even after
the abolition of the Venkatagiri Estate the character of impartiability was
found to continue in respect of B Schedule properties which formed part of the
Zamindari. The learned Judge held that the plaintiffs 1 to 4 were not entitled
to a share in the immovable properties of B schedule but were entitled to
recover such sum as may be needed to make up the monthly allowance for their
branch at Rs. 1,000/- p.m. after taking into consideration, the amount which plaintiffs
1 to 4 were given under the Abolition Act. They were granted a charge for the
amount on items 1, 14 and 16 of Plaint B Schedule. Plaintiffs 1 to 4 were also
given a decree for one-third share sub-item 8 of item 8 of Schedule B
properties, namely, the golden howdah.
So far as plaintiffs 5 to 7 were concerned,
they were held not entitled to any relief. The plaintiffs 1 to 7 preferred
appeal, O.S.A. 53 of 1961 against the judgment of the trial Judge in O.S. 351
of 1952. The first defendant also filed OSA 40/61 against that portion of the
judgment in O.S. 351 of 1952 whereby the trial judge held that even after the
notification of the Venkatagiri Estate under the Abolition Act and the payment
of the compensation under that Act to plaintiffs 1 to 4 their claim for
maintenance under the agreement of April 8, 1889 continued in force and that
plaintiffs 1 to. 4 were entitled to a payment of Rs. 1,000/- p.m. each after
giving credit for payments made under the Abolition Act. Both the appeals
O.S.A. 53 of 191 and O.S.A. 40 of 1961 were heard together and disposed of by a
Division Bench consisting of Chandra Reddy, C.J. and Natesan, J., by a common
judgment dated August 13, 1965. The Division Bench held that plaintiffs 1 to 4
having enjoyed the benefit of payment under s. 45 (5) of the Abolition Act and
got capitalised by the Tribunal of their maintenance rights on the basis of the
extinction of the Estate cannot make a further claim as if the agreement of
1889 was a subsisting one and call upon the 1st defendant to make up for any
deficiency from the properties that had pot vested in the Government. The
Division Bench also disallowed the claim of plaintiffs 1 to 4 for a share in
the value of the golden howdahs. It was 94 pointed out that silver, and the golden
howdah were not treated as an impartible but were actually divided among the
family members. Accordingly the Division Bench allowed the appeal O.S.A. 40 of
1961 filed by the 1st defendant. In regard to C.S.A. 53 of 1961 the Division
Bench held the claim that the Venkatagiri Estate was not an impartible estate
by custom was devoid of merit. It was pointed out that before the Special
Tribunal under the Abolition Act the plaintiffs had advanced the same,
contention but it was rejected. Plaintiffs 1 to 4 filed an appeal to this Court
against the decision of the Special Tribunal. The decision of this Court is
reported in Raja Muvva Gopalakrishna Yachendra and others v. Raja V. V.
Sarvagana Krishna Yachendra and others(1). Before this Court plaintiff 1 to 4
did not question the finding of the Special Tribunal that Venkatagiri Estate
was an impartible Estate. On the other hand the contention advanced by the
plaintiffs was that the Venkatagiri Estate was impartible by custom and that
the impartibility continued under the Madras Impartible Estates Act but ceased
when the estate vested in the State Government. The Division Bench upon an
examination of the evidence held that Venkatagiri Estate was an impartible
estate by custom and was not made impartible for the first time under
the-agreement of 1889 or by Acts of 1902 or 1904.
The claim for partition made by plaintiffs in
respect of the B Schedule immovable properties was negatived. As regards the
claim to maintenance made by plaintiffs 5 to 7 the Division Bench held that a
similar claim had been rejected previously by the Judicial Committee as not
tenable either under the Agreement of 1889 or under Hindu Law or on the basis
of custom. In the result OSA 53 of 1961 filed by the plaintiffs was dismissed.
OSA 40 of 1961 preferred by the 1st defendant was allowed and the suit was
dismissed in its entirety.
The first question to be considered in this
appeal is whether the plaintiffs are entitled to claim a share in the three
items of immovable properties of B Schedule already referred to. The argument
on their behalf may be sumtnarised as follows : Venkatagiri Estate admittedly
an ancestral estate was not impartible by custom but for the first time by the
agreement of 1889 the parties thereto agreed to hold it as an impartible
estate, succession being governed by the law of primogeniture. The arrangement
was brought about to preserve the integrity of the Estate and to preserve its
past glory. By reason of the notification of the Estate under the Abolition Act
and the vesting of the Estate in the Government the purpose for which the
agreement was entered into was frustrated. The agreement of 1889 could
therefore be no longer relied upon for preserving the impartible character of
the Estate or what was left of it.
The three items of immovable (1) [1963] Supp.
2 S.C.R. 280.
95 properties though outside the territorial
limits of the Zamindari ,were held impartible only as appurtenant to the main
Estate and after the impartible character of the main estate was lost, these
properties became partible. Even though the estate was treated as an impartible
estate, it was an ancestral estate as there was joint ownership of the Estate
in the family members. Plaintiffs 1 to 4, therefore, were entitled to one-third
share of the properties of B Schedule which are not vested in the Government
and plaintiffs 5 to 7 were entitled similarly to another one- third share.
In our opinion the contention of the
plaintiffs that Venkatagiri Estate was not impartible by custom is untenable.
The 'early history of the Zamindari is summarised in Gopalkrishna v. Sarvagna
Krishna(") as follows :
The estate of Venkatagiri has been in
existence since Muhamadan times. On the disruption of the Moghal Empire, it
owed allegiance to the Nawabs of Arcot. In addition to the payment of peshkush
they had to maintain an armed force 'for the assistance of Government in times
of disorder or rebellion. As a result of the treaty between the East India
Company on the one side and the Nawab of Arcot on the other the Administration
of that part of the country under the suzerainty of the latter was made over to
the British. Under this treaty the Zamindary of Venkatagiri was recognised and
the Rajah had to pay to the East India Company what be was paying before to the
Muhammadan rulers.
Sometime later, in accordance with the
arrangement entered into between the Zamindars in Western Arcot and Lord Olive,
the East India Company took over the responsibility for the preservation of law
and order and the Zamindars were relieved of the task of maintaining armed
forces and in its stead they undertook to pay an additional revenue on their
estate, which was added to the peshkush.
It was assured that the fixed peshkush would
remain unalterable. In pursuance of this agreement, a sanad was granted in 1802
to the Zamindar of Venkatagiri and other Zamindars embodying the terms agreed
upon. Ever since, successive Zamindars held the estate paying peshkush which
has been invariable." The Estate is described in the official documents in
the year 1801 as one of the Western palayama. It was observed by the Privy
Council in Naragunty Lutchmeedavamah v.Vengama Naidoo(1):
(1) (1955) A.W.R. 590.
(2) 9 M.I.A. 66.
96 .lm15 A Polliam is explained in Wilson's
Glossary to be a tract of country subject to a petty Chieftain." In
speaking of Polligars, he describes them as having been originally petty
Chieftains occupying usually tracts of hill or forest, subject to pay tribute
and service to the paramount State, but seldom paying either, and more or less independent,
but as having, at present, since the subjugation of the country by the East
India Company, subsided into peaceable landholders. This corresponds with the
account read at the Bar from the Report of the Select Committee on the affairs
of India, in 1812. A Polliam is in the nature of a Raj; it may belong to an
undivided family, but it is not the subject of partition; it can be held by
only one member of the family at a time, who is styled the Polligar, the other
members of the family being entitled to a maintenance or allowance out of the
estate.
The document of 1889 also negatives the case
of the plaintiffs that the Estate was made impartible for the first time by
that document. The language of the document clearly shows that it only
recognised the then subsisting impartible character of the Estate. In other
words the document proceeds on the assumption that the Zamindari was made
impartible by custom from the very beginning. The relevant portion of the
Agreement of 1889 Ex. A-1 is to the following effect :
"On the 18th April 1889, the Contract
entered in writing by Raja Velugoti Rajagopala Krishna Yachandra Bahadur, Rajah
of Venkatagiri, eldest son of Sri Raja Velugoti Kumara Yachama Naidu and his
three uterine brothers (1) Muddu Krishna, (2) Venkatakrishna and (3) Minor
Venugopala by his father and guardian Raja Velugoti Kumara Yachama Naidu is as
follows :
Out of the sons of the said Sri Raja Velugoti
Kumara Yachama Naidu, excluding the three ....
who, have been given in adoption .... while
we remaining four brothers comprising the parties to this document are sons of
the said Raja V. Kumara Yachama Naidu and members of an undivided family;
because the Venkatagiri Estate is impartible and subject to the law of
Primogeniture our father Sri Raja V. Kumara Yachama Naidu, with the intention
of his seeing, and approving of, the ruling of the estate by his eldest son the
Raja Rajagopala Krishna, and with the intention of passing his time thereafter
in future in the meditation of God, as means to attain to the world beyond,
transferred on the 28th October, 1878 to the eldest of us four and the heir
apparent to the estate, namely, the 97 Raja Rajagopala Krishna, Raja of
Venkatagiri, the Venkatagiri Zamindari, the immovable Properties relating
thereto, the other immovable properties which were acquired, by means of the
income of the said Zamindari and all his ancestral and his self acquired
movable properties, excepting the nine lakhs and odd rupees and all the
properties connected therewith including its accretions which he retained for
his charitable expenses.
Since, then, the aforesaid Raja Rajagopala
Krishna Yachandra, Raja of Venkatagiri, has, been ruling the estate...... When
the matters stood thus, on account of ill-feeling that arose between some of
us, two of us, namely Muddukrishna Yachendrulu and Venkata Krishna Yachendrulu,
expressed the desire that the said Venkatagiri Zamindari, the immovable
properties connected therewith, the other immovable properties acquired by
means of the income of the said Venkatagiri Zamindari and all the movable
properties should be divided into four shares and their respective shares
should be given to them. The Raja Rajagopala- krishna, Raja of Venkatagiri,
becoming aware of this fact, contended that the Venkatagiri Zamindari, the
other immovable properties connected therewith, the other immovable properties
which were acquired by his father out of the income of that Zamindari and
trans- ferred by him to him alongwith the estate and ancestral and sell
acquired movable properties of his father which the latter transferred to him
alongwith the estate, were impartible.
"Thereupon, all of us brothers consulted
about the aforementioned points of dispute, our father who is all-knowing and
who has considerable experience. He considered it well and positively expressed
his opinion that, regard to immovable property the Venkatagiri Zamindari was
originally earned by our ancestors by reason; of velour in war, that it was an
ancient Zamindari, that it was an impartible estate devolving along the eldest
line of descendants, that it was permanently settled, that, when Sannad
Milikiyat Istimirar was granted to the ancestors, who was then the Zamindar of
Venkatagiri, the peshkush for this Venkatagiri Estate was fixed with reference
to the amount of expenses of the military troops and servants which he (our
ancestor) was supplying and with reference to the money paid as tribute to the
former Government, namely, Nawab, that therefore this Venkatagiri estate was
not partible, that the immovable properties connected therewith, and other
immovable properties acquired by means of the income of the said estate were
also, of 98 course, impartible-that, in regard to movable property, his
ancestral and self-acquired money in cash, the money consisting of deposits
kept in the firms of Arbuthnot & Co., and Binny & Co., all the silver,
gold and precious stones, jewels, which were on the 26th October, 18'/8
transferred along with the said Venkatagiri Estate to this eldest son, the Raja
Rajagopala Krishna, Raja of Venkatagiri, together with the accretions thereto
upto now should be divided equally ;among his four sons who are among the
parties to this document-that such would be a just arrangement. In regard to
our father's opinion _about the - immovable property, the three youngest of us
brothers consulted their proper friends and in regard to our father's opinion
about the aforementioned movable properties which were acquired by Raja
Velugoti Kumara Yachama and transferred along with the Venkatagiri Estate, the
eldest of these four brothers, . . . consulted his proper friends. On account
of the cogent reasons urged by the respective friends of these both parties,
and for the reasons urged by the respective friends of these both parties, and
for the reason that all family feuds would (thereby) end and compromised the
opinions of one of the parties to this document, namely, Raja Velugoti Kumara
Yachama Naidu, on the two points referred to above hAve been agreed in, as
certainly correct and accepted, by the remaining parties, namely, we four
brothers. Therefore, the parties to this document, namely, we four brothers,
and our father Raja Velugoti Kumara Yachama do now jointly and severally hereby
determine, agree and affirm as follows "All this Venkatagiri Estate is
impartible descendible along the eldest line (of descent) of the said Estate,
the immovable properties connected therewith and the other immovable properties
acquired by means of the income of the said estate should be enjoyed by the
eldest of us four brothers and the heir of the aforesaid Raja Velugoti Kumara
Yachama namely the aforesaid Velugoti Rajagopala Krishna and after him by his
son, son's son and so on in the eldest male line of descent...... subject to
the condition of paying allowances to other members of our family, suitably to
their respective status out of the income from the estate and the properties.
And so we divide in the manner shown below all the money, silver, gold and
precious stones, jewels and the accretions resulting thereto upto 99 this day
which formed ancestral and self acquisition of our father...... along with the
said estate......" Counsel for the plaintiffs has been unable to show any
term in this Agreement to support his contention that it was only by virtue of
that document that the parties agreed to call the Estate impartible. On the
contrary the document indicates that there was clear recognition by the
executable of the then character of the Estate as an impartible zamindari.
We shall then deal with the inclusion of the
Venkatagiri Zamindari in the Impartible Estates Act passed by the Madras
Legislature in 1902 and 1904. These Acts became necessary as a result of the
ruling of the Privy Council in Sri Raja Rao Venkata Mahipati Rama Krishna Rao
Bahadur v. The Court of. Wards(1). The decision of the Judicial Committee was
given in 1889 and the Impartible -Estates Act was passed in Madras in 1902 with
a view to preserve the ancient zamindaris of the Madras Presidency. Referring
to the Schedule to the Act the statement of objects and reasons explained that
the schedule contained only Permanent Settlement Estates in existence before
the date of Permanent Settlement Regulations and which have been declared by
the judicial decisions to be impartible or locally considered by ancient custom
to be so impartible and had in fact descended without partition since that
date, The Impartible Estates Act, 1904 finally took the place of 1902 Act. The
Estate of Venkatagiri has been included in the schedule annexed to both the
Impartible Estates Acts. The obvious inference is that the Government had made
enquiries and was satisfied that the Estates included in the schedule to Act 2
of 1904 were impartible and the inclusion of the Estates therein is a
legislative determination that they were impartible. In Pushavathi Viziaram
Gajapathi Rai Manne v. Pushpavathi Visweswar Gajapathi Rai(1) this Court
observed "Soon after these decisions were pronounced by the Privy Council,
the Madras Legislature stepped in because those decisions very rudely disturbed
the view held in Madras about the imitations on the powers of holders of
impartible estates in the matter of making alienations of the said estates.
That led to the passing of the Madras Impartible Estates Acts II/1902, 11/1903
and II/1904. The Legislature took the precaution of making necessary enquiries
in regard to impartible estates within the State and made what the legislature
thought were necessary provisions in respect of the terms and conditions on
which the said estates were held." (1) I.L.R. 22 Mad. 383, (2) [1964] 2
S.C.R. 403.
100 In these circumstances we see no reason
to differ from the finding of the High Court that the Estate of Venkatagiri was
an ancient impartible Estate by custom and was not made impartible for the
first time under the agreement of 1889 or by the Madras Acts of 1902 and 1904.
The next question for determination is what
is the effect of the Abolition Act on the rights and obligations of the members
of the family in relation to the Venkatagiri Zamindari.
According to the plaintiffs the property
described in the B Schedule appended to the plaint did not vest under s. 3 (b)
of the Abolition Act. The properties in the B Schedule include a building in
Mount Road, Madras a bungalow at Kalahasti and the District Judge's bungalow at
Nellore Town.
These buildings are situated outside the
territorial limits of the Venkatagiri Estate.
Section 3 (a) and (b) of the Abolition Act
states "3. With effect on and from the notified date and save as otherwise
expressly provided in this Act- 1 (a) [the Madras Estates] Land (Reduction of
Rent) Act, 1947 (Madras Act XXX of 1947) 3 [in so far as it relates to matters
other than the reduction of rents and the collection of arrears of rent and the
Madras Permanent Settlement Regulation, 1802 (Madras Regulation XXV of 1802),
the Madras Estates Land Act, 1908 (Madras Act 1 of 1908), and all other
enactments applicable to the estate as such shall be deemed to have been
repealed in their application to the estate.] (b) the entire estate (including
-all communal lands; porambokes; other non-ryoti lands; waste lands; pasture
lands; lanka lands; forests; mines and minerals; quarries;
rivers and streams; tanks and irrigation
works; fisheries and ferries), shall stand transferred to the Government and vest
in them, free of all encumbrances and the Madras Revenue Recovery Act, 1864,
the Madras Irrigation Cess Act, 1865, and all other enactments applicable to
ryotwari areas shall apply to the estate;
Section 1(3), state (3) It applies to all
estates as defined in section 3, clause (2), of the Madras Estates Land Act,
1908, 101 except inam villages which became estates by virtue of the Madras
Estates Land (Third Amendment) Act, 1936.
Section 2 (3) defines "estate" to
mean....
(3) "estate" means a Zamindari on
an undertenure or an inam estate;
Section 2(16) defines "Zamindari"
as follows (16) "zamindari estate" means- (i) an estate within the
meaning of section 3, clause (2) (a), of the Estates Land Act, after excluding
therefrom every portion which is itself an estate under section 3, clause (2)
(b) or (2) (e), of that Act; or (ii) an estate within the meaning of section 3,
clause 2(b) or 2(c), of the Estates Land Act, after excluding therefrom every
portion which is itself an estate under section 3, clause (2) (e), of that Act.
Section 3(2) of Estate Land Act (Madras Act 1
1908) defined an "estate" to mean :
(a) any permanently-settled estate or
temporarilysettled zamindari;
(b) any portion of such permanently-settled
estate or temporarily-settled zamindari which -is separately registered in the
office of the Collector;
(c) any unsettled palaiyan or jagir;
x x x x Section 2(2) of the Madras Impartible
Estates Act, 1904 (Madras Act 2 of 1904) defines an "impartible
estate" as an estate descendible to a single heir and subject to the other
incidents of impartible estates in Southern India. In relation to the
Venkatagiri Zamindari the expression Estate in s. 3(a) of the Abolition Act
refers obviously to the Venkatagiri Estate which till then was subject to the
operation of the Madras Permanent Settlement Regulation and the Madras Estates
Lands Act. In relation to the Venkatagiri Zamindari s. 66 of the Abolition Act
enacts 102 that with effect from the notified date the Madras Impartible
Estates Act, 1904 shall be deemed to have been repealed in its application to
the Estate. The question arises whether the word' " estate" in s. 66
of the Abolition Act denotes the zamindari consisting of properties which stood
transferred to the Government under the Abolition Act and properties which are
not so transferred, or whether the expression 'estate' refers to only the
Venkatagiri Estate which until the notification issued under the Abolition Act
took effect was the subject of the Permanent Settlement Regulation and the
Madras Estates Land Act. The High Court has given sufficient reasons in support
of its view that the word " estate" in s. 65 of the Abolition Act
denotes only the estate, Governed by the Permanent Settlement Regulation and
the Estates Land Act and not any other part of the impartible zamindari. In
other words the Abolition Act has no application to properties which are
outside the territorial limits of the Venkatagiri Estate. The result,
therefore, is that in relation to Venkatagiri Zamindari the Madras Impartible
Estates Act has been repealed so far as the Act applied to the Estate which by
operation of s. 3 (b) of the Abolition Act has got transferred and became
vested in the State Government. In relation to other properties which have not
become so vested in the Government the Madras Impartible Estates Act (1904)
continues to be in force. It is the case of the plaintiffs that items 14, 15
and 16 of Schedule B did not vest in the Government under s. 3 (b) of the Act.
Item 14, 15 and 16 are Motimahal, Mount Road Madras, the District Judge's
Bungalc Nellore and Vengatagiri Raja's bungalow, Kalahasti. It is conceded on
behalf of defendant No. 1 that items 14, 15 and 16 did not vest in the
Government under s. 3 (b) of the Abolition Act. It is further claimed on behalf
of the plaintiffs that items 14, 15 and 16 have become partible properties
after the coming into force of the Abolition Act and plaintiffs should be
granted their shares of these properties. The contention of the plaintiffs is
that the Zamindari was made impartible by the agreement entered into by the
brothers in 1889 and the properties which have not been taken over by the
Government should 'be divided among the family members. We have already given
reasons for the view that the Zamindari was impartible independently of the
agreement of 1889 and that the agreement was no more than a conscious
affirmation by the parties of what the position was previously in fact and in
law. To put it differently the agreement of 1889 merely acknowledged and defined
antecedent rights and antecedent obligations. It is therefore difficult to
accept the contention of the plaintiffs that the three items of property in
Schedule B have become partible properties.
Since the Abolition Act did not affect these
items the properties have continued to be what they were ,at the time of
incorporation with the zamindari, namely the properties retain their impartible
character.
103 We are also not impressed with the
argument that as there was incorporation of the buildings with the original.
impartible estate the building ceased to have
any impartible character when the impartibility of the parent estate was gone.
'It is true that the buildings which are outside the geographical limits of the
Venkatagiri Zamindari cannot be brought within the definition of the Estate as
defined in the Estates Lands Act and the Abolition Act cannot therefore be made
applicable to such buildings. But the buildings have acquired the character of
impartibility as a result of incorporation with the parent estate and that
character cannot be lost unless the statute intervenes. Section 4 of the
Impartible Estates Act itself contemplates parts of an Estate being impartible.
In Pushavathi Viziaram Gajapathi Rai Manne v. Pushavathi Visweswar Gajapathi
Raj(1) the effect of integration is described as follows :
"In all such cases, the crucial test is
one of intention. It would be noticed that the effect of incorporation in such
cases is the reverse of the effect of blending self- acquired property with the
joint family property. In the latter category of cases where a person acquires
separate property and blends it with the property of the joint family of which
he is a co-parcener, the separate property loses its character as a separate
acquisition and merges in the joint family property, with the result that
devolution in respect of that property is then governed by survivorship and not
by succession. On the other hand, if the holder of 'an impartible estate
acquires property and incorporates it with the impartible estate he makes it a
part of the impartible estate with the result that the acquisition ceases to be
partible and becomes impartible. In both cases, however, the essential test is
one of intention and so, wherever intention is proved, either by conduct or
otherwise, an inference as to blending or incorporation would be drawn."
It was urged on behalf of the plaintiffs that the effect of the Abolition Act
in regard to Venkatagiri Estate was to take away the character of impartibility
in relation to property both inside and outside the territorial limits of the
Estate. It was also contended that the object of the Abolition Act was
threefold : (1) to eliminate the class of middlemen (2) to abolish permanent
settlement and (3) to introduce ryotwari system. The argument was that in the
face of the avowed objects of the legislation it was futile to contend that the
character of impartibility still continued in a truncated form. It was said
Cessante ratione legis, cassat et ipsa lex (reason is the soul of the law and
when the reason for (1) [1964] 2 S.C.R. 403.
104 any particular law ceases, so does the
law itself). It is not possible to accept this principle in the present case.
For, many times custom outlives the condition
of things which give it birth. As observed by Lord Atkinson in Rai Kishore
Singh v. Mst. Gahenabai(1) It is difficult to see why a family should not
similarly agree expressly or impliedly to continue to observe a custom
necessitated by the condition of things existing in primitive times after that
condition had completely al- tered. Therefore, the principle embodied in the
expression 'cessat ratio cessat lex' does not apply where the custom outlives
the condition of things which gave it birth." We accordingly reject the
contention of the plaintiff on this aspect of the case.
We are also unable to accept the contention
of the plaintiffs that the property of the impartible estate was held in
coparcenary as joint family property and became partible amongst the members
once it lost its character of impartibility. In other words the contention was
that junior members had a present interest in the impartible estate and were
entitled to a share in the estate once impartibility was removed. In our
opinion there is no justification for this argument. The law regarding 'the
nature and incidents of impartible estate is now well settled. Impartibility is
essentially a creature of custom.
The junior members of 'a joint family in the
case of ancient impartible joint family estate take no right in the property by
birth, and therefore, have no right of partition having regard to the very
nature of the estate that it is impartible. Secondly, they have no right to
interdict alienations by the head of the family either for necessity or
otherwise. This, of course, is subject to s. 4 of the Madras Impartible Estates
Act in the case of impartible estates governed by the Act. The right of junior
members of the family for maintenance is governed by custom and is not based
upon any joint right or interest in the property as co-owners. This is now made
clear by the judicial committee in C.I.T. Punjab v. Dewan Krishna Kishore(2)
and Raja Velugoti Sarvagna Kumara Krishna Yachendra Bahadur Varu v.
Raja Rajeswara Rao (3) The income of the
impartible estate is the individual income of the holder of the estate and is
not the income of the joint family. In the former case Sir George Rankin
observed :
"But they find it necessary to say that
the law as declared in the cases of Baijnath (2) and Shiba Prasad (1) A.T.R.
1919 P.C. 100.
(2) 68 I.A. 155.
(3)68 I.A. 181.
Singh (3) has not been unsettled by the
Gorakhpur case (1). The observation itself and its context show that the
reference to the other judgments of the Board is controlled by the reference to
Baijnath's case (2) as having negatived the view that an impartible estate
could not be in any sense joint family property. The issue in the Gorakhpur
case (1) was Indarjit's right to succeed, and the passage cited was addressed
to that. It appears to waive aside, as no longer an obstacle, the extreme logic
that as there is no right to a partition the junior branch could have no right,
actual or prospective, which the enjoyment of maintenance could evi- dence. It
need not be taken as swinging to the opposite extreme, indeed, it would be in a
high degree unreasonable, having regard to the line of decisions, to interpret
it as meaning that there is no reason why holders of impartible estates should
not now be told that, unless they can prove 'a custom to the contrary, all
junior male members of the family have a claim for maintenance that is, all who
have not relinquished their right of succession. The point made is only this,
that rights of maintenance, out of an impartible family estate however little
they may be, and to whichever member they be extended-would not be enjoyed or
enjoyable by anyone who had ceased to be joint in respect of the estate.
In their Lordships' opinion,, this should not
be taken to affirm any disputable doctrine as to the origin of the right of
maintenance, or any other doctrine which would make junior members "actual
co-owners" or the right a "real right" in the sense negative by
the Board in Baijnath's case (2)." To this extent the general law of
Mitakshara applicable to joint family property has been modified by custom and
an impartible estate, though it may be an ancestral joint family estate, is
clothed with the incidents of self- acquired and separate property to that
extent. The only vestige of the incidents of _joint family property, which
still attaches to the joint family impartible estate is the right of
survivorship which, of course, is not inconsistent with the custom of
impartibility. For the purpose of devolution of the property, the property is
as I sumed to be joint family property and the only right which a member of the
joint family acquires by birth is to take the property by survivorship but he
does not acquire any interest in the property itself. The right to take by
survivorship continues only so long as the joint family does not cease to exist
and the only manner by which this right of survivorship could be put an end to
is by establishing that the estate ceased to be joint family property for the
purpose of suc 6 Sup. C.I./70-8 106 cession by proving an intention, express or
implied, on behalf of the junior members of the family to renounce or surrender
the right to succeed to the estate. In the latest case Anant Bhikappa v.
Shankar Ramchandra(1) the judicial committee clearly affirmed the principle
that the property )Was not held in coparcenary.
"Now an impartible estate is not held in
coparcenary (Rani Sartaj Kauri v. Rani Deoraj Kuari) though it may be joint
family property.
It may doolve as joint family property or as
separate property of the last male owner. In the former case, it goes by
survivorship to that individual, among those male members who in fact and in
law are undivided in respect of the estate, who is singled out by the special
custom, e.g., lineal male primogeniture. In the latter case jointness and
survivorship are not as such in -point; the estate devolves by inheritance from
the last male owner in the order prescribed by the special custom or according
to the ordinary law of inheritance as modified by custom." We proceed to
consider the next question arising in this appeal namely whether the agreement
of 1889 in so far as it related to payment of maintenance allowance of Rs.
1,000 p.m. to plaintiffs 1 to 4 continues to be in force even after the
abolition of the Estate -and the vesting of the Zamindari estate in the Government
under the Abolition Act.
It was argued on behalf of defendant No. 1
that plaintiffs have enjoyed the benefit of payment under s. 45 (5) of the
Abolition Act and got capitalised by the Tribunal the maintenance rights on the
basis of the extinction of the Estate. Section 45(1), (4) and (5) of the
Abolition Act states :
"45. (1) In the case of an impartible
estate which had to be regarded as the property of a joint Hindu family for the
purpose of ascertaining the succession thereto immediately before the notified
date, the following provisions shall apply." (4) The portion of the
'aggregate compensation aforesaid payable to the maintenance-holders shall be
determined by the Tribunal and notwithstanding any arrangement already made in
respect of maintenance whether by a decree or order of a Court, award or other
instrument in writing or contract or family arrangement, such portion shall not
exceed one-fifth of the remainder referred to in sub-section (3), except in the
case referred to in the second proviso to section 47, sub-section (2).
(1) 70 I.A. 232.
107 (.5) (a) The Tribunal shall, in
determining the amount of the compensation payable to the maintenance holders -
and apportioning the same among them, have regard, as far as possible, to the
following considerations, namely :- (i) the compensation payable in respect of
the estate;
(ii) the number of persons to be maintained
out of the estate;
(iii) the nearness of relationship of the
person claiming to be maintained;
(iv) the other sources of income of the
claimant; and (v) the circumstances of the family of the claimants (b) For the
purpose of securing (i) that the amount of compensation payable to the
maintenance-holders does not exceed the limit specified in sub-section (4) -and
(ii) that the same is apportioned among them on an equitable basis, the
Tribunal shall have power, wherever necessary, to reopen any arrangement
already made in respect of maintenance, whether by a decree or order of a
Court, award, or other instrument in writing, or contract or family
arrangement." Under the Agreement of 1889 plaintiffs 1 to 4 are entitled
to an allowance of Rs. 1,000/- if paid out of the income of the Zamindari, that
is to say, the income of the Venkatagiri Estate strictly so called and the
income of the properties which did not get transferred to the Government under
the Abolition Act. The Madras Impartible Estates Act, 1904 provides by section
9 for the payment of maintenance of junior members of an impartible Zamindari
family.
"9. Where for the purpose of
ascertaining the succession to an impartible estate, the estate has to be
regarded as the property of a joint Hindu family, the following persons shall
have a right of maintenance out of the impartible estate and its income, namely
:- (a) the son, grandson, or great-grandson, in the male line, born in lawful
wedlock or adopted, of the proprietor of the impartible estate or of any
previous proprietor thereof.
Provided that where maintenance is payable to
a son or grandson, by or under any decree or order of court, award, contract,
family arrangement or other instrument 108 in writing, and such instrument,
expressly or by necessary implication, makes it clear that the maintenance is
payable to such son or grandson as representing his branch of the family, it
shall not be open to a son or grandson of such son, or to a son of such
grandson, as the case may be, during the period for which such maintenance is
payable, to claim maintenance either in his individual right or as representing
his branch of the family;
(b) the widow of any previous proprietor of
the impartible estate so long as she does not remarry.
"(c) the widow of the son, grandson or
great- grandson of the proprietor of the impartible estate or of any previous
proprietor thereof, so long as she does not remarry, provided she has no son or
grandson living;
(d) the unmarried daughter born in lawful
wedlock of the proprietor of the impartible estate or any previous proprietor
thereof; and (e) the unmarried daughter, born in lawful wedlock, of a son or
grandson of the proprietor of the impartible estate or of any previous
proprietor thereof, provided she has neither father nor mother nor a brother
living.
Explanation.-Maintenance shall, where
necessary, include a provision for residence and in the case of an unmarried
daughter of the proprietor or any previous proprietor, a provision for the
expenses of her marriage in accordance with the scale customary in the
family." Where there is in force an agreement relating to payment of
maintenance the Act does not authorise reduction of the quantum of maintenance
provided by such agreement except in the circumstances stated in s.
14(2)-circumstances which are not applicable to the present case. It is
admitted that junior members of the Venkatagiri family were receiving
maintenance, under the Agreement of 1889 until the coming into force of the
Abolition Act.
Section 45 (2) of the Abolition Act provides
for the ascertainment of the amount of maintenance payable to persons who,
before the notified.-date, were entitled to maintenance out of the estate and
its income either under S.
9 or s. 12 of the Madras Impartible Estates
Act or under any contract or family arrangement. The total sum payable to the
maintenance holders out of the compensation should not under S. 45 (4) exceed
one-fifth of the remainder of the compensation after the claims of creditors
are satisfied.
It is not possible to accept the argument of
defendant No. 1 that S. 45 109 should be construed as extinguishing the right
secured to junior members under the provisions of contract or family
arrangement granting a new right limited to the measure stated in the section.
It is manifest that s. 45 is concerned only with the 'apportionment at
compensation amount. , The section is concerned with the rights and liabilities
in relation to properties which are represented by the compensation. - There
may be a case of an impartable Zamindari where the properties not transferred
under s., 3 (b) 'are quite as valuable as the properties transferred.
If, in such a case, there is a contract or
family arrangement for the payment of maintenance, such contract or family
arrangement would as regards the quantum of the allowance, have some relation
to the total income of the properties of the Zamindari. In the absence of
express words to that effect, it would riot be right in our opinion to
attribute to the Legislature an intention to free the properties not
transferred to the Government by the operation of s. 3 (b) of the Act from
liability to contribute towards the maintenance of the junior members under
such a contract or family arrangement, and, while leaving the landholder in
possession of those other properties, limit the maintenance holders to a share
of a fifth of the compensation amount. We are therefore unable to accept the
argument that ss. 45 to 47 of the Abolition Act have the effect of
extinguishing any rights which the junior members of the zamindari family may
have had before the notified date to receive maintenance out of the entire
income of the zamindari under the contract or family arrangement. It follows
that the agreement of 1889 in so far as it relates to payment of maintenance of
Rs. 1,000/- p.m. to plaintiffs 1 to 4 continues to be in force in spite of the
coming into operation of the Abolition Act.
Under the Agreement of 1889 plaintiffs 1 to 4
are entitled to payment of Rs. 1,000/- per month from the income of the
Venkatagiri Zamindari. That part of the zamindari which consisted of the
Venkatagiri Estate has been converted into compensation deposited and to be
deposited in the office of the Tribunal. The first defendant and plaintiffs 1
to 4 would also be entitled to ryotwari pattas under ss. 12 and 47 of the
Abolition Act. It is not disputed that plaintiffs 1 to 4 have been paid Rs.
75,000/- when the second instalment of compensation is deposited by the
Government.
If additional compensation is allowed under
s. 543 of the Abolition Act plaintiffs 1 to 4 would get a part of such
additional compensation. The trial Judge calculated that plaintiffs 1 to 4 have
been paid total amount of compensation to the extent of Rs. 1,37,000/-.
Interest on this amount at 3 1/2 % p.a. works out to Rs. 4,795/- p.a.
The trial Judge directed that plaintiffs 1 to
4 would be entitled to payment of such additional sums which together with
interest would add up to Rs. 1,000/- p.m. In other words the plaintiffs 1 to 4
were held entitled to recover from defendant No. 1 the difference 110 between
the interest payable on the compensation and the sum of Rs. 1,000/- p.m. and the
difference was made a charge on items 1, 14 and 16 of Schedule B Properties.
The trial Judge directed that interest should be calculated at 3 1/2% p.a. on
the compensation amount. In our opinion the proper rate of interest should be 5
1/2% p.a. Subject to the modification we consider that the decree granted by
the trial Judge should be restored if during any part of the period subsequent
to September 7, 1949 plaintiffs 1 to 4 have not been in receipt of the -amount
of Rs. 1,000/- per month calculated in the above manner they would be at
liberty to file an application for the recovery of such sums as may be needed `
to make up the allowance to Rs. 1,000/- per month for that period. For such
decree as may be passed on such application a charge is created on items 1, 14
and 16 of plaint Schedule B properties.
We pass on to consider the question whether
plaintiffs 5 to 7 are also entitled to maintenance at the rate of Rs. 1,000/-
p.m. according to the agreement of 1889. Plaintiffs 5 and 6 are illegitimate sons
of Raja Venugopal, the youngest of the four brothers who entered into the
Agreement. The seventh plaintiff is the son of the 5th plaintiff. The material
part of the, document states "After the life of the said Sri Venugopala
Krishna Yachendrulu, his purusha santhathi, shall, in perpetuity, be paid the
same allowance amount, that is, at the rate of rupees one thousand (Rs. 1,000)
per month, in the aforesaid manner. But, if, at any time, in any one of the
branches of the said Sri Muttukrishna Yachendrulu, Sri Venkatakrishna
Yachendrulu and Sri Venugopala Krishna Yachendrulu there be more than one male
member, much males, and their purusha santhathi shall take the said allowance
amount of rupees one thousand in proportion to their respective shares, in the same
manner as they would respectively take their other properties separately by way
of inheritance according to the Hindu Law." The Subordinate Judge, Nellore
held in O.S. No. 30 of 1932 that plaintiffs 5 and 6 were not the Purusha
Santhathi of Venugopal. The decision was affirmed, by the High Court in
Maharajah of Venkatagiri v. Raja Rajeswara Rao(1) and on appeal against the
judgment of the High Court was dismissed by the Judicial Committee. That
decision is binding upon the plaintiffs 5 and 6 on the ground of res judicata.
The seventh plaintiff as the son of the 5th plaintiff can claim no higher
rights than the 5th plaintiff. It was contended that plaintiffs 5 to 7 were
entitled to claim that I L.R. 1933 Mad. 622.
111 allowance under certain other clauses of
the agreement of 1889.
Reference was made to the following clause :
"Moreover, if in any of the aforesaid
three branches of our family, viz., the branch of Sri Muttukrishna Yachendrulu,
the branch of Venkatakrishna Yachondrulu, and the branch of the minor Sri
Venugopala Krishna Yachendrulu, any male should die without purusha Santhathi
either by way of aurasa or by way of adoption, the allowance amount that was
being received by the person who so died without purusha Santhathi shall go to
the gratis (agnates) who are nearest to him in his own branch according to
Hindu Law. Should the aforesaid person who dies without purusha santhathi leave
any widow or widows and maintenance has to be paid to them, only the nearest
gnatis who get the allowance of such deceased person in the manner mentioned
above shall be liable therefor. Further should any of the said three branches
of our family become extinct by the total absence of purusha santhathi either
by way of aurasa or by way of adoption, the allowance being paid to that branch
shall be stopped subject to the condition that, if there be then 'a widow or
widows- left of the last male who died in that branch, one-half of the
-allowance of rupees one thousand (Rs.
1,000) that was being paid to that male, namely,
Rupees five hundred (Rs. 500), shall, be paid to the widow or Widows of the
person who so died without purusha santhathi -as maintenance for life".
This clause provides that on the death of any
male member entitled to maintenance allowance under the deed without leaving
any male issue either 'by birth or adoption the -allowance which was received
by that person should go according to Hindu Law to the Gnatis who in the same
line as the deceased are nearest to such deceased member.
Plaintiffs 5 to 7 alternatively claimed to be
the Gnatis of Venugopal In our opinion it is not open to plaintiffs 5 to 7 to
re-agitate the matter which should have been pressed as a ground of claim in
the previous suit. In any case the -argument is without substance. It is true
that the word Gnati in Sanskrit literally interpreted includes a brother also.
But in the context of the particular passage in the agreement it could not have
been the intention of the parties that when there was a failure of legitimate
or adopted son, gnatis' including illegitimate sons would take the allowance.
The question in reality is not whether an illegitimate brother is a gnati or
not for purposes of succession, but whether the word is used in that unusual
sense in the Agreement. As pointed out in the previous case this clause has no
application and the case is really 112 governed by the earlier clause already
referred to. We accordingly reject the argument of plaintiffs 5 to 7 on this
aspect of the case.
Lastly was contended on behalf of plaintiffs
1 to 4 that they were entitled to one-third share of the golden howdah sub-item
8 of item No. 8 of B schedule. The only evidence upon which plaintiffs relied
was clauses 5 and 6 in the will of Rajagopalakrishna dated 22nd September, 1910
which states :
"Our Venkatagiri Samasthanam is an
ancient and impartable estate. It has also been established by the Madras Act
II of 1902 that it is an impartible Zamindari. The Village and other landed
properties in the talukas of the aforesaid ancient Venkatagiri Zamindari
acquired by my ancestors, and myself, as well as the houses, bungalows, forts,
gardens, places, etc. possessed by us in the four places, viz., Nellore,
Kalahasthi, Madras and Banaras those within and around Venkatagiri, and those
in other taluses all these have been included in the impartible estate. All
these, as well as elephants, horses, carriages, ambaris (Howdahs, Honzas (seat)
and furniture exclusive of those made of silver and gold were treated as such
(impartible even in the partition between me and my youngest brother.
They shall hereafter also remain as
such." It is evident from this clause that what was treated as impartible
were Ambaris Henzas, and furniture exclusive of those made of silver and gold.
In other words silver and gold howdas were not treated as impartible. Counsel
on behalf of defendant No. 1 referred to paragraphs 5 and 6 of the will which
are to the following effect :
"Further, as many matters under dispute
between myself and my brothers have to be settled, the value of some goldware,
silver were jewel of precious stones etc. belonging to the Estate Regalia was
paid to my brothers from out of myself acquired money and I have taken
possession of these items at the time of partition. Besides these, some more
jewels of precious stones, etc., which were acquired, were paid for from my
self-acquired money -and have been received by-me." Clause 6 runs thus
"The jewels made of precious stones as well as gold and silverware which
fell to my share from out of the aforesaid share inclusive of those which have
been improved and converted and mentioned in detail in Schedule 'A' appended
hereto. The jewels set with precious stones and gold and silver were got by me
from my 113 brothers at the time of partition of paying their value to them
(brothers) from out of self acquired money. . . . " These clauses make it
cleat that the golden howdah had been divided and nothing was left for further
division. In our opinion the Division Bench was right in taking the view that
the plaintiffs 1 to 4 are not entitled to division of the golden howdah.
For the reasons expressed we hold that the
judgment of the Division Bench dated, August 13, 1965 should be set aside.
It is declared that plaintiffs 1 to 4 are
entitled under the Agreement of 1889 to be paid Rs. 1,000/- p.m. out of the
income of the Venkatagiri Zamindari. Out of the compensation amounts so paid to
plaintiffs 1 to 4 interest shall be calculated at 51% per annum. If the
interest so calculated falls short of Rs. 1,000/- per month,' plaintiffs 1 to 4
are entitled to the payment of such additional sums -as would enable them to be
in receipt of a total income of Rs. 1,000,/- per month. If for any period
subsequent to 7th September, 1949 plaintiffs 1 to 4 have not received allowance
of Rs. 1,000/- p.m. they are granted liberty to file an application for the
recovery of such sums as may be needed to make up the allowance to Rs. 1,000/-
for that period. For such decree as may be passed on such application a charge
would be created on items 1, 14 and 16 of plaint B Schedule properties. The
suit is dismissed so far as plaintiffs 5 to 9 are concerned. The appeal is
allowed to the extent indicated above with proportionate costs.
R.K.P.S.
Appeal allowed.
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