Full Judgment Text
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PETITIONER:
RAJAH VELUGOTI KUMARA KRISHNA YACHENDRAVARU & ORS.
Vs.
RESPONDENT:
RAJAH VELUGOTI SARVAGNA KUMARA KRISHNAYACHENDRA VARU & ORS.
DATE OF JUDGMENT:
28/10/1969
BENCH:
RAMASWAMI, V.
BENCH:
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
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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]
JUDGMENT:
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
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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
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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
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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
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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.
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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
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(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
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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
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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
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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 were satisfied
that the Estates included in the schedule to Act 2 of 1904
were impartible and the inclusion of the Estates therein is
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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.
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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
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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
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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
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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
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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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