TMI Blog1921 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... -great-grandson of the third son. The defendants are his uncles, being younger brothers of his father. It will thus be seen that the plaintiff is the direct senior lineal descendant of the common ancestor, the person who, by the law of primogeniture as applied in England, would succeed. But the uncles are one degree nearer to the common ancestor than he is, The question is which is entitled to succeed, the plaintiff or the uncles defendants jointly. The uncles on the death of the widow managed to seize the property, which accounts for their being defendants in the suit. 5. The family in question was an ancient family, holding sway as independent Rajas. They were dispossessed by a neighbouring Raja in the eighteenth century, but, having helped the English, they were reinstated by Warren Hastings. Their Lordships are satisfied that the reinstatement, which was finally carried out at a subsequent period, restored the family possessions to what they had always been in ancient times, viz. an impartable raj or zamindari, and that the zamindari now is ancestral property and not self-acquired, They do not think it necessary to add anything to what was said by the Subordinate Judge and b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indu family, and the zamindari, though impartible, was part of the common family property, one of the nephews was entitled to succeed to it on the death of his uncle. If, on the other hand, the zamindar at the time of his death was separate in estate from his brother's family the zamindari ought to have passed to one of his widows, and, failing his widows, to a daughter or descendant of a daughter preferably to his nephews. 10. It will be noted that the actual judgment went on the ground of its being self-acquired property, but the passages above quoted certainly lay down that so long as a zamindari was family property, although impartible, the selection of the next holder would be determined by taking the senior member judged by survivorship. 11. The Tipperah case (1869) 12 Moo. I.A. 523, 1869. This was a contest between two claimants for the raj of Tipperah. It was held that there was a custom of allowing each Raja to appoint his successor, and one of the claimants, being held to be duly appointed, was preferred. But in discussing what would happen if that appointment was not made out, with a view to determining the conflicting claims of the full and the half-blood, Lor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though the family was undivided; but if that zimmdari had been shown to have been an ancestral zamindari, as in this case, the judgment of the Board would no doubt have been the other way. Their Lordships think it necessary to make this observation in order to avoid future misconception as to what was decided here in the Shivagunga case. 14. That case, therefore, followed the dicta in the Shivagunga as against the dicta in the Tipperah case. 15. Stree Rajah Yanumula Venkayyanah v. Stree Rajah Yanu mula Boochia Vankondora (1870) 13 Moo. I.A. 333, 1870. In this case the decision does not touch the question, but again Sir J. Col vile comments on the Shivagunga case, and repeats what he said in the former case that the judgment would have been the other way if the property had not been self-acquired. He adds, at page 339: It is, therefore, clear that the mere impartibility of the estate is not sufficient to make the succession to it follow the course of succession of separate estate. And their Lordships apprehend that if they were to hold that it did so they would affect the titles to many estates held and enjoyed as impartible in different parts of India. 16. Maharani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and attention is called to the incompatibility of the Shivagunga and Tipperah cases, and Shivagunga is followed. 22. This is the first decision precisely in point. It is also to be noted because it is the case quoted with approval by Lord Macnaghten in 32 I.A., as will be subsequently mentioned. 23. Rajah Rup Singh v. Rani Baisai (1884) I.L.R. 7 All. 1 : L.R. 11 I.A. 149, 1884. This was a case between a widow and the nearest male heir. This decision is exactly what it has been said above the Shivagunga case would have been if the property had not been self-acquired. Here it was ancestral and the male was preferred. 24. Sir Barnes Peacock, delivering a judgment by a Court of which Lord Blackburn was a member, approved (page 154) of Sir R. Couch's judgment in Maharani Hiranath Koer v. Babu Ram Narayan Singh (1879) 9 B.L.R. 274 above cited. 25. Up to this point, with the single exception of the Tipperah case, which, as stated, was not under Mitakshara law, the law is all one way and seems to affirm these propositions: (1) The fact that a raj is impartible does not make it separate or self-acquired property. (2) A raj, though impartible, may in fact be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the death of the father, as he would if the property were held in severalty. It is difficult to reconcile this mode of succession with the rights of a joint family, and to hold that there is a joint ownership which is a restraint upon alienation. It is not so difficult where the holder of the estate has no son, and it is necessary to decide who is to succeed. 31. It will now be best to abandon for the moment the chronological order of all cases and to trace the developments directly attributable to this judgment. 32. Venkata Rao v. Court of Wards (1899) L.R. 26 I.A. 83, 1899. (The first Pittapur case.) This case decided two points: (1) That the case of Sartaj, which was a case of direct inter vivos gift, covered by analogy the case of alienation by will. (2) That the law as laid down in Sartaj, which was a case from the North-Western Provinces, also applied in Madras, notwithstanding the older Madras decisions, Madras being under the Mitakshara law. 32. No general remarks are made which need be quoted. The zamindari in question was the zamindari of Pittapur. 33. Raja Rama Rao v. Raja of Pittapur (1918) L.R. 45 I.A. 148, 1918. (The second Pittapur case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g done-could overrule them. 40. The matter, however, does not rest here. For after the decision in the Sartaj case other succession cases did arise which shall now be quoted chronologically--remembering that the date of the Sartaj case is 1888. 50. Raja Jogendra Bhupati Hurrochundra Mahapatra v. Nityanand Man Singh (1890) L.R. 17 I.A. 128, 1890. This was a competition between a legitimate and an illegitimate son, but in the beginning of the judgment (Sartaj's case having been cited inter alias), Sir R. Couch says (page 131): Now it may be well first to dispose of a point arising out of the fact that this is an impartible raj, which it is admitted to be. According to the decision in the Shivagunrja case which, as their Lordships understand, is not now disputed, the fact of the raj being impartible does not affect the rule of succession. In considering who is to succeed on the death of the Rajah, the rules which govern the succession to a partible estate are to be looked at, and therefore the question in the case is, what would be the right of succession supposing instead of being an impartible estate it were a partible one 51. This passage is absolutely conclusiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentence be read in one way that may be so, he was even then right in fact, for in the case of Muttuvaduganadha Tevar v. Periasami (1896) I.L.R. 19 Mad. 451 : L.R. 23 I.A. 128, Lord Hobhouse, delivering judgment in the Privy Council, had said (page 137) that their Lordships agreed on both points with the presiding Judge of the High Court. Now one of the points was the question of deciding succession in the impartible estate, and as to that the presiding Judge had approved (p. 132) of the decision in 4 Madras L.R., 252. 58. Lastly, Parbati Kunwar v. Chandarpal Kunwar (1903) I.L.R. 31 All. 457 : L.R. 36 I.A. 125, 1909 where Lord Collins (page 136) quotes with approval a judgment of the Appeal Court of Madras: The first principle is that a rule of decision in regard to succession to impartible property is to be found in the Mitakshara law applicable to partible property, subject to such modifications as naturally flow from the character of the property as an impartible estate. The second principle is that the only modification which impartibility suggests in regard to the right of succession is the existence of a special rule for the selection of a single heir when there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right of the other members that was being considered was a presently existing right. The chance which each member might have of a succession emerging is his favour was obviously outside the sphere of inquiry. 62. Turning next to the second Pittapur case, it must be always remembered that the claim for maintenance as put forward was made, not against the head of the family of which the claimant was a member, but against the donee, who on the claimant's own allegation was a stranger to the family. It obviously could not, therefore, succeed unless it was of the nature of a real right. Now it could only be of the nature of a real right, no proceedings having taken place before the estate got into the hands of the donee, if the maker of the claim had before that event been a person who was in some way an actual co-owner of the estate, and any observations which go to the question of maintenance apart from the question of real right may be treated as obiter dicta, The decision, therefore, was the logical outcome of the decision in the Sartaj Kuari case, but again the question of succession was outside the scope of inquiry. 63. No doubt it would have been possible to decide th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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