Judgement

Appeal (No. 31 of 1924) from a decree of the High Court (October 26, 1922) reversing, so far as material to the present appeal, a decree of the District Judge of South Arcot.

The appeal related to the succession to an impartible jaghir situate in Kallayan hills in South Arcot, on the death in 1914 of the holder without issue. In 1822 the younger son had succeeded by arrangement and the jaghir had since descended from father to son. Upon the death of the holder in 1914 the respondent, who was the senior member of the senior branch, took possession. Thereupon the appellant, the mother of the last holder, instituted the present suit, claiming the jaghir as heir to his separate property. The respondent claimed to succeed by survivorship. By his written statement he pleaded that " no arrangement, or act, capable of effecting a separation has ever been made, or done, between or by the members or branches of the family.”

The suit raised other questions which were not material to the present appeal

The material facts, with a pedigree, appear from the judgment of the Judicial Committee.

The District Judge held that the arrangement in 1822 did not operate as a separation of the branches; that view was affirmed on appeal. He found, however, that, at some undetermined date long before the suit, the joint family had been divided. He so inferred from evidence as to an absence of joint residence and community of worship, and other circumstances. He held that in consequence the jaghir was separate property, and passed a decree in favour of the plaintiff.

On appeal to the High Court the decree was reversed so far as it related to the succession to the jaghir, and the defendant was held entitled to succeed.

Krishnan J. said " It is a well settled proposition of law that the succession to an impartible estate is governed by the rule of survivorship if it is joint family property, and by the rule of inheritance to separate property if it is separate property. That was so laid down in the Sivaganga case (( 1863) 9 Moo. I. A. 543.), and has since been affirmed in several cases, the last one being the case of Baijnath Prasad Singh v. Tej Bali Singh. (( 1921) L. R. 48 I. A. 195.) In the present case there is no difficulty in choosing a single individual out of a class for the jaghirship, for it is conceded that if the rule of survivorship applies, the first defendant is entitled as the senior member of the senior line whereas if the rule as to succession to the separate estate applies, the first plaintiff, the mother, is entitled.”. In his opinion the decision of the Privy Council in Tara Kumari v. Chaturbhuj Narayan Singh (( 1915) L. R. 42 I. A. 192.), and of the High Court in Gurusami Pandiyam v. Pandia Chinna Thambiar (( 1920)1. L. R. 44 Mad. 1.), were distinguishable, as in both those cases the evidence of the estate being the separate property of the last holder was much stronger. He agreed with the view arrived at by Ramesam J. that the evidence fell short of proving that the joint family rights of the defendant in the jaghir were extinguished at any time.

Ramesam J. was of opinion that the authorities, which he discussed, showed that a family separation did not have the effect of making an impartible estate the separate property of the holder, unless there was an intention on the part of the junior members, either express or implied, to give up their chance of succeeding. The learned judge considered in great detail the evidence as to a separation after 1822. He observed that the holder of an impartible estate rarely considers it consistent with his dignity to permit other members of the family, except perhaps his brothers, to reside under the same roof with himself. With regard to the evidence as to an absence of joint worship he said "I will only observe that in Southern India there is no such thing as a private temple or a thakur or idol or deity in a house. Except in a few orthodox homes of the higher castes, which are daily dimi