Judgement

Consolidated Appeals (Nos. 38 and 39 of 1940) from a decree of the High Court (February 10, 1939), which varied a decree of the Court of the Subordinate Judge of Nellore (March 18, 1936).

The following facts are taken from the judgment of the Judicial Committee. The questions in this case arose within a Sudra family of which the defendant (appellant), the Raja of Venkatagiri, was the head. He was the present holder of the impartible estate which went by that name, having succeeded to his father in 1937 while the present suit was pending in appeal before the High Court of Madras. The estate was admittedly joint family property though impartible. The two plaintiffs (respondents) were the illegitimate sons of one Venugopal, younger brother of Rajagopala, the defendants grandfather, who was a previous holder of the impartible estate.

The claim of the plaintiffs, brought by a suit of July 4, 1932, was threefold. First, they said that by the terms of a deed dated April 8, 1889, they were entitled between them to an allowance of Rs. 1000 per month payable by the defendant as holder of the impartible estate. Secondly, they claimed that by custom maintenance was payable to them as junior members of the family. Thirdly, they said that apart from the deed, and apart from any custom, they had the right to be paid maintenance out of the impartible estate as a matter of Hindu law.

The Subordinate Judge found in their favour as regards their claim under the deed, but rejected their other grounds of claim.

On appeal the High Court (Leach C.J. and Krishnaswami Ayyangar J.) held against them on the deed and on the custom, but decided that they had a good claim by the Hindu law to maintenance out of the impartible estate, and fixed the amount at Rs. 250 per month for each plaintiff.

The relevant terms of the deed of 1889 appear from the judgment of the Judicial Committee.

1941. July 14, 15, 16. Sir Herbert Cunliffe K.C. and P. V. Subba Row for the appellant. There are concurrent findings on two questions of fact—that there is no such custom as is alleged by the respondents entitling illegitimate sons of a junior member of the family to maintenance out of the impartible estate; and that the respondents were amply provided for by their father. They are entitled to nothing out of the impartible estate, illegitimacy being a fatal bar to any claim, whether under the deed or under Hindu law or custom. On the true construction of the deed of 1889 illegitimate sons were never contemplated and are not within its scope—it could not have been intended to make provision for illegitimate sons of Venugopal, who at that time was a mere boy. Even if they were legitimate they would take nothing under Hindu law, the right to maintenance out of an impartible estate being limited to sons and brothers of the Zamindar. The question is whether decisions of this Board up to Shiba Prasad Singh v. Rani Prayag Kumari Debi (( 1932) L. R. 59 I. A. 331.), to the effect that maintenance in the case of an impartible estate is limited to sons and brothers of the present holder were overruled by Collector of Gorakhpur v. Ram Sunday Mal (( 1934) L.R. 61.I.A. 286.) ; there is nothing in the last-mentioned case which in terms overrules the previous decisions. Those cases were all considered in Commissioner of Income-tax v. Dewan Bahadur Dewan Krishna Kishore (Ante at p. 155.). Both the judges of the High Court accepted the position that before the decision in Collector of Gorakhpur v. Ram Sundar Mal (( 1934) L.R. 61.I.A. 286.) the law clearly would not allow these respondents, legitimate or otherwise, to take, because they were beyond the permitted degrees entitled to maintenance out of an impartible estate. It is submitted that the High Court misunderstood the effect of the decision in the Gorakhpur case (( 1934) L.R. 61.I.A. 286.). This Board, if it overrules a decision, does not do so in the oblique way suggested, but clearly states that a different conclusion has been