AI Drafter 
TaxTMI 
TaxTMI 
1921 (2) TMI 2
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....s of the second son are also extinct. 4. The plaintiff is the great-great-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 ....
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....from the impartible nature of the subject. Hence if the zamindar at the time of his death and his nephews were members of an undivided Hindu 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 ....
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....succession was the subject of dispute. The ruling of this Court was that in that case the zamindari should follow the course of succession as to separate property, although 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 L....
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....ure of the property incapable of existence. But there being nothing in the nature of the property inconsistent with the right of survivorship, it may be presumed that right remains. 21. There follows more to the same effect, 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 Mita....
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.... The property in the paternal or ancestral estate acquired by birth under the Mitakshara law is, in their Lordships' opinion, so connected with the right to a partition that it does not exist where there is no right to it.... By the custom or usage the oldest son succeeds to the whole estate 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-Wester....
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....s to the succession to the property on the death of the Rajah or zamindar, and it was hold that, for the purpose of determining who was entitled to succeed, the estate must be considered as the joint property of the family. 39. And he then goes on with the discussion, on the assumption that the cases have thereby been distinguished so that nothing now being 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....
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....ling of this Board that when impartible property passes by survivorship from one line to another, it devolves, not on the coparcener nearest in blood, but on the nearest coparcener of the senior line--a position held by the principal respondent. 57. And then he quotes the case in 4 Madras L.R. It was said that he here made a mistake--the case in 4 Madras L.R., not being a decision of the Board. But, although if the 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....
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....t to fasten the attention on the word "coparcenary," but rather to inquire what actually was decided in the case of Sartaj Kuari. Now what was decided was that in an impartible raj there was no restriction on the power of alienation by the member of the family who was on the Gaddi and was in possession, in respect that there was no such right of co-ownership in the other members as to give them a title to prevent such alienation. The 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....