Judgement

Appeal (No. 79 of 1936) from a decree of the High Court (March 19, 1935) which modified a decree of the Subordinate Judge of Tinnevelly (April 23, 1931).

S. Kotilinga, a Hindu governed by the Mitakshara, was the owner of an ancestral impartible estate in the Madras Presidency. Having at the time a son, K. Kotilinga, living, whom he wished to exclude from the succession, he, by a deed executed four days before the Madras Impartible Estates Act came into force, settled the estate on himself for life and, subject thereto, granted it absolutely to the child with whom his second wife was then enceinte should such child be born alive and a male. The

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deed further provided that, if the child should not be born alive and a male or being born alive and a male should die before him without leaving male issue, his second wife should take the estate absolutely.

A male child, Minakshi Sundara, was born to the settlors second wife on August 13, 1902.

In 1903, the settlors first son, K. Kotilinga, died.

In 1904, his second wife died.

In 1906, a third son, Ulagalum, was born to the settlor by a third wife.

On January 7, 1907, the settlor died and Minakshi Sundara, his son by his second wife, succeeded to the estate.

Minakshi Sundara died intestate in 1929, leaving him surviving his widow (the appellant) and no issue.

The widow claimed the estate as heir to her husband against his half-brother, Ulagalum (the respondent), on the ground that her husband took the estate under the deed of settlement as self-acquired property. She also alleged that her husband had separated from his half-brother.

The Subordinate Judge found in her favour on both grounds.

On appeal by Ulagalum, the High Court reversed the finding of the Subordinate Judge as regards the separation of Minakshi Sundara and Ulagalum, but affirmed his findings that Minakshi Sundara took the estate as self-acquired property and that his widow was entitled to the estate.

1939. Feb. 7, 9. Cornish for the appellant. It is not disputed that the owner of an impartible estate can dispose of it without reference to his sons, but the property, being ancestral, cannot be converted into separate property and the sons acquire by birth a right to the property by survivorship. That right remains, subject to alienation by the owner.

Here, when the settlor died, the property still remained joint family property though only a single heir could succeed. The eldest son might be excluded, but the property still retained its character as joint family property.

If the father gave the property to a stranger, the stranger would take an absolute interest in it as separate property; but if the property is given to a son, the son takes it as joint family property. The birth-right in joint family property is beyond the fathers control Shibap Prasad Singh v. Prayag Kumari Debie. (( 1932) L. R. 59 I. A. 331.)

The owner of an impartible estate can alienate it Sartaj Kuari v. Deoraj Kuari (( 1887) L. R. 15 I. A. 51.) ; Sri Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards and Venkatakumari Mahipati Surya Rao (( 1890) L. R. 26 I. A. 83.); Baijnath Prasad

v. Tajbali Prasad (( 1921) L. R. 48 I. A. 195.) ; Collector of Gorakhpur v. Ram Sundar Mal. (( 1934)

L. R. 6l I. A. 286.) But the right of survivorship is a consequence of joint status which can be got rid of only by severance in one of the ways recognized by Hindu law.

Though an impartible estate can be alienated to a stranger so as to give him an absolute right, it cannot

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be alienated to a member of the family so as to effect a change of status Lal Ram Singh v. Deputy Commissioner of Partabgarh. (( 1923) L. R. 50 I. A. 265, 275.)

The right of survivorship is a real right of property which should not be wilted away. It may be defeated by the owner