Judgement

The object of this suit was to establish the title of the Respondent to succeed to an impartible zemindary, called Urkadu, as the heir of the Appellants late Husband, Zemindar Kottalinga Sethurayar.

The Respondent claimed to be heir, as the Son eldest in age of the Zemindars Sons, and also as being the Son of the second Wife. The Appellant insisted, that she was the second Wife, and that the Respondents Mother was the third Wife of the Zemindar, and that her Son, as being the Son of the senior sur-[@ page M.I.A. 571]viving Wife, though born after the Son of the third Wife, was entitled to succeed to the zemindary, in preference to the Respondent.

Kottalinga Sethurayar was a Zemindar Polygar in the Zillah of Tinnevelly, Madras. He belonged to the caste called Maravars, among whom polygamy prevails.

Both sides admitted first, that the Sons of the first or royal Wife succeeded to the zemindary in priority to Sons of any other Wife, and without reference to the age of her Sons, and secondly, the fact, that the first Wife had died without issue.

The facts were these—

Kottalinga Sethurayar married three Wives Kanthimathiammal, the first or royal Wife, died in his lifetime, without issue. The Appellant and the Respondents Mother were the other two Wives, and were married to him on the same day, and the first question in the appeal was one of fact, whether the Appellant or the Respondents Mother was the first married to the late Zemindar. Both Wives were of the same class.

The Respondent was born in the year 1838 ; the Appellants eldest Son, Murthu Ramalinga Sethurayar, was not born till 1849.

The second question in the appeal was, whether, assuming the Appellant to have been the Zemindars senior surviving Wife, her Son, though younger in age, was or not entitled to succeed to the zemindary in preference to the Respondent as the Son of the junior Wife.

It appeared from the documents put in evidence, that previously to the suit in which the above questions arose, regarding the succession to the zemindaries [@ page M.I.A. 572] of the Maravars in the District of Tinnevelly; a similar dispute had arisen respecting the zemindary of Purayar, in the same District of Tinnevelly. In that case, the deceased Zemindar left two Sons, one aged two years, by his second Wife, and the other, aged eight years, by his eighth Wife, and the law Officers of the then Sudder Dewanny Court gave their opinion, that by the Hindoo law, the elder in age of the two Sons would be his Fathers heir; but the Government entertaining an opinion that this was not the rule of succession in the District, directed the opinions of the Zemindars in the District to be taken as to the rule of succession among the Polygars there. The opinions of twenty Zemindars in the District were accordingly taken, and that of the great majority was, that the Son of the senior Wife for the time being, though younger in age, was to be preferred to the elder Son of a junior Wife. The Government acted on this opinion, and the Son of the senior Wife succeeded to the zemindary. It further appeared, that some time in the year 1849, the late Zemindar Kottalinga Sethurayar was requested by the Collector of Tinnevelly to state for hi? information the rule of succession which prevailed in his zemindary of Urkadu ; and on the 17th of July, 1849, and before the birth of the Appellants Son, that he had addressed an Arzi to the Collector, in which he stated, that when a Zemindar of his caste had Sons by different Wives, the Son of the first Wife always succeeded to the zemindary, and that in the event of there being no Son by the first Wife, the first-born Son amongst the Sons of the other Wives had a right to succeed to the zemindary, and that in [@ page M.I.A. 573] such case the succession did not depend upon the order in which the Wives were married. This Arzi was said to have been stolen from the Record Office and another substituted, and was not in evidence.

The Respondent in the Courts belo