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1863 Supreme(SC) 7
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
PRESENT: MEMBERS OF THE JUDICIAL COMMITTEE,—THE RIGHT HON. THE LORD JUSTICE KNIGHT BRUCE, THE RIGHT. HON. SIR EDWARD RYAN, AND THE RIGHT HON. THE LORD JUSTICE FURAER
KATAMA NATCHIAR - Appellant
Versus
SRIMUT RAJAH MOOTTOO VIJAYA RAGANADHA BODHA GOOROO SAWMY PERIYA ODAYA TAVER - Respondents
On appeal from the Sudder Dewanny Adawlut at Madras.
Decided On : April 27, 28, 29 &-30, May 30, & June 1, 1863.
Privy Councillor,- Assessors,—the Right Hon. Sir Lawrence Peel, and the Right Hon. Sir James W. Colvile.
Self-acquired property of a member of an undivided Hindoo family descends according to the general rules of separate estate (to the widow in default of male issue), as the principle of survivorship applies only to joint family property characterized by community of interest and unity of possession.
Headnote:(A) Hindoo Law - Succession to separate property of a member of an undivided family - Right of widow and daughters to inherit self-acquired estate - The general course of descent for separate property is that it descends to the widow in default of male issue. This rule applies even if the owner was a member of an undivided family.
(B) Principle of Survivorship - The right of survivorship, which allows co-parceners to take an undivided estate, is based on community of interest and unity of possession. Since self-acquired property lacks these elements, the right of survivorship does not apply, and the widow's right of succession is not postponed to the rights of collateral male heirs.
(C) Nature of Property - The law of succession follows the nature of the property and the interest in it. Property that is self-acquired does not fall into the common stock of a united family upon the death of the acquirer and thus does not follow the line of descent applicable to ancestral joint property.
Facts of the case:
An impartible estate was granted by the government to an individual as a self-acquisition. The individual died without male issue, leaving behind widows and daughters. The estate was claimed by the son of the deceased's elder brother, asserting that because the brothers were undivided, the self-acquired property of the deceased should descend to the collateral male line in preference to the widows and daughters.
Findings of Court:
The court found that while the brothers remained undivided in their ancestral estate, the granted estate was the self-acquired property of the deceased. It further found that the previous decrees dismissing the claims of the widows and daughters were based on an erroneous interpretation of the law regarding the succession of self-acquired property within an undivided family.
Issues: Whether the self-acquired property of a member of an undivided Hindoo family descends to the widow and daughters or to the undivided brothers and their descendants.
Ratio Decidendi: The court held that the right of survivorship is predicated on community of interest and unity of possession, which are characteristics of joint family property. Self-acquired property does not possess these characteristics; therefore, there is no foundation for a right to take such property by survivorship. Consequently, the general rules of succession for separate estates apply, meaning the property descends to the widow in default of male issue, regardless of whether the owner was part of an undivided family in other respects.
Result: Decrees and orders reversed; Appellant and sisters declared entitled to the estate.
In this case the appeal was brought from a decree of the Civil Court of Madura, dated the 27th of December, 1847, by which the Respondents father, Gowery Taver, the son of Oya Taver, was held entitled to the Zemindary of Shivagunga, as heir to the Appellants [@ page M.I.A. 540] father, Gowery Vallabha Taver, in preference to Anga Moottoo Natchiar, the surviving widow of the latter, on the ground that Appellants father and his elder brother, Oya Taver, were undivided brothers. The appeal also embraced the decrees of the Sudder Adawlut Court at Madras, dated the 19th of April, 1852, the 5th of November, 1859, the 3rd of March, 1860, and the decree of the Civil Court of Madura, of the 25th of August, 1859, in which it was held that the Appellant, claiming as heir in remainder after the death of the surviving widow, Anga, Moottoo Natchiar, was not entitled either to appeal from the decree of the 27th of December, 1847, or to prosecute a new suit to recover the Zemindary.
The property claimed comprised the Zemindary of Shivagunga,. a Zemindary of very great value, situate in the District of Madura in the Presidency of Madras, together with other property and mesne profits to a very large amount.
The circumstances of the case, the history of the Zemindary of Shivagunga, and of the extensive litigation respecting the succession, were as follow—
The Zemindary of Shivagunga was created by [@ page M.I.A. 541] Saadut Ally Khan, Nabob of the Carnatic, in the year 1730, and it was given as an hereditary fief by him to Shasavarna Odaya Taver, of the family of Nalcooty, of the Marawa caste, in reward for his-military services. Shasavarna was on his death succeeded by his only son, Vadooganada, who was killed in battle Vadooganada, had an infant daughter by his wife, Ranee Velu, but no other child. It appeared that two persons named Vella Murdoo and Chinna Murdoo then usurped the actual government of the Zemindary, and ultimately wrested from the Nabob of the Carnatic his acquiescence in the nominal tenure of the Zemindaryship by Ranee Velu. Velu gave her daughter by Vadooganada in marriage to one Vengam Odaya Taver. The daughter died in giving birth to her first child, and the child survived its mother but a short period. Both died in the lifetime of the Ranee Velu, who was thus left issueless. It also appeared that the Appellants father lived at Shivagunga with the Ranee, who, it was alleged, had adopted him.
The parties who then appeared to be entitled to the Zemindary were two brothers, Oya Taver and Gowery Vallabha Taver, colla teral descendants from the progenitors of Shasavarna. bowery Vallabha Taver was at this time about twenty-nine years of age. Oya Taver was his senior in years, but sickly and infirm, the two brothers were the nearest relations of Vadooganada and also of Shasavarna. Vella Murdoo and Chinna Murdoo, on the death of Ranee Velu, expelled Oya Taver and Gowery Vallabha 1 aver from the Zemindary, and joined a rebellion against the Government. This rebellion was put down by the East India Company.
By the Treaty of the 12th of July, 1792, all sovereign power over the Poligar countries, including the Zemindary of Shivagunga, was transferred in perpetuity by the then Nabob of the Carnatic to the East India Company.
[@ page M.I.A. 542] By a proclamation of Lord Clive, dated the 6th of July, 1801, the Government transferred the Zemindary, which it appeared, was treated by the Government as an escheat for want of lineal heirs, to the Appellants father, Gowery Vallabha Taver otherwise called Permettoor Worria Taver, or Woya Taver who was collaterally descended from the progenitors of the first zemindar, and appointed him Zemindar of Shivagunga.
By a Sunnud i Milkeat Istimrar, or deed of permanent settlement, dated the 22nd of April, 1803, the Zemindary was confirmed to the Appellants father, to hold in perpetuity, with power to transfer the same by sale or gift, on payment to the Government 6f a permanent annual jumma.
