In the succession to an impartible estate under general Hindu law, where sons are born to wives of the same caste and rank, the right of primogeniture is determined by the seniority of birth of the sons, not by the priority of their mothers' marriages.

Headnote:(A) Hindu Law - Succession to Impartible Estate - Primogeniture - In the case of an impartible estate, the rule of primogeniture applies. Where there are sons by different wives of the same caste and rank, the right of succession is determined by the seniority of birth of the sons, and not by the priority of the marriages of their mothers. (Paras 591-593)

(B) Custom - Proof of Special Usage - For a special custom modifying the ordinary law of succession to be recognized, it must be ancient, invariable, and established by clear and unambiguous evidence. Secondary evidence, such as summaries of opinions or conflicting testimonies, is insufficient to prove such a custom. (Paras 585-588)

(C) Status of Wives - While the first or royal wife may occupy a position of precedence, no such analogy applies to subsequent wives of the same caste and rank, who are considered to be on an equal footing regarding the succession rights of their sons. (Para 594)

Facts of the case:
A dispute arose regarding the succession to an impartible zemindary. The deceased holder had three wives; the first died without issue. The second and third wives were married on the same day. The son of the third wife was born first, while the son of the second wife was born later. The claimant representing the son of the second wife argued that the son of the senior surviving wife should succeed regardless of age, based on a purported local custom. The respondent, the first-born son, claimed succession based on general Hindu law.

Findings of Court:
The court found that the appellant failed to prove the existence of an ancient and invariable custom in the district or family. Consequently, the general Hindu law of succession applies. Under this law, among sons of wives of equal caste and rank, seniority is determined by birth.

Issues: Whether the son of the senior surviving wife is entitled to succeed to an impartible estate in preference to an older son of a junior wife based on local custom, and if not, whether general Hindu law favors the first-born son regardless of the order of the mothers' marriages.

Ratio Decidendi: The court held that in the absence of a proven special custom, the general Hindu law governs. For impartible estates, primogeniture is the rule. Among sons of wives of the same caste and rank, there is no seniority based on the mother's marriage priority; the law recognizes seniority according to birth. The special privileges of a first wife do not extend to subsequent wives.

Result: Appeal dismissed and judgment of the lower court affirmed.

Legal Category Hierarchy

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