Judgment

SHAH, J. : One Thammiah had two sons-Gangaraju and Ramayya-and four daughters Ammanna, Seshamma, Gangamma and Bhavamma; of these, the two sons and the daughter Ammanna died during Thammiah s life time. Gangaraju left him surviving his widow Chetamma and Ramayya his widow Venkamma. Ammanna was survived by her son Rudrayya, who was brought up by Thammiah. Thammiah died in 1885, Seshamma in 1904, Gangamma in 1930 and Bhavamma in 1935. After the death of Bhavamma Paddaraju (hereinafter called the plaintiff), son of Gangamma filed Suit No. 53 of 1944 in the court of the Subordinate Judge at Rajamundhry against the descendants of Seshamma and Ammanna for a decree for partition and separate possession of a third share in 17 lands, described in Schedule B to the plaint as "agricultural land and measuring in the aggregate 51 acres 72 cents in Patta No. 12 in village Pandalpaka in Pithapur Zamindari" and in Schedule C described as three houses with sites thereof in village Pandalpaka. To this suit Jagggarayudu and Paddaraju, sons of Venkataraju-brother of the plaintiff-were impleaded as defendants 31. and 32. The plaintiff claimed that Thammiah owned occupancy rights in the ryoti lands in the Pitnapuram Zamindari and that after Thammiah s death the lands were managed with the permission of the plaintiff and his brother Venkataraju, in the first instance, by the two daughters-in-law of ThammiahChetamma, and Rammanna, son of Seshamma and their "possession and management was on behalf of heirs and persons entitled to maintenance out of the estate" and that the right to sue for partition accrued on the death of Bhavamma on March 18, 1935.

2. The suit was resisted by the descendants of Seshamma and Ammanna principally on the plea that in the lands describe in Schedule B Thammiah had no proprietary right and that occupancy right therein accrued to Rudrayya and Veeriah (husband of Seshamma) by virtue of the Madras Estates Lands Act, 1908. It was also pleaded that Thammiah had made an oral will devising his estate in favour of Veeriah-who was his illatom son-in-law and Rudrayya in equal shares. This plea about the oral will was negatived by the Court of First Instance and the High Court and need no longer be considered, because it is not canvassed before us in this appeal. The trial court held that Thammiah had no proprietary interest in the lands in Schedule . B and on that view decreed the plaintiff s claim for partition of the houses and sites described in Schedule C only and awarded a third share to him, another third share to Ramanna and the remaining third share collectively to defendants 31 and 32 sons of Venkataraju.

3. In appeal, the High Court of Madras modified the decree of the trial court holding that in the agricultural lands Thammiah had occupancy rights which on his death devolved on his surviving daughters, and directed that those lands be also partitioned, and that a third share be awarded to the plaintiff and a third share to defendants 31 and 32 together with mesne profits from March 18, 1935, the date of Bhavamma s death. With certificate under Art. 133, this appeal is preferred by the descendants of Seshamma and Ammanna.

4. The principal question which falls to be determined in this appeal is whether Thammiah had, as claimed by the plaintiff, occupancy rights in the lands described in Schedule B , or as the contesting defendants contend, Thammiah was an annual tenant of the zamindar and that after his death the lands were held on similar tenure by different members of the family of Thammiah and that the occupancy right was acquired by Rudrayya and Veeriah by virtue of the Madras Estates Land Act, 1908. We lands are within a permanently settled zamindari under Madras Regulation XXV of 1802, and it is common ground that Thammiah was cultivating the entire area of the lands during his life time. There is no evidence indicating that his possession was ever disturbed during his life-time. There is again no evidenc