Right of inheritance of still born child.

This is a second appeal against the decree and judgment of the District Judge of Krishna modifying that of the Subordinate Judge of Masulipatnam in O.S.No.11 of 1943. Plaintiff is the second wife of one Kotayya. By a registered partition deed, Exhibit D-1, dated 6th July, 1923, Kotayya and his son Venkataratnam (the defendant) by his first wife partitioned the family properties. Under the said deed the A marked schedule properties were allotted to Kotayya and the B marked schedule properties to Venkataratnam. It was also provided thereunder that Kotayya should only enjoy the income derived from the property allotted to him without powers of alienation and that after his death if sons had been born to him they should take it absolutely and in case he had no male issue, it would go to Venkataratnam. In the happening of the second contingency the document directed Venkataratnam to give maintenance to the plaintiff at the rate of one putti of paddy per year. The aforesaid A schedule land was service inam land situated in the village of Choragudi. In or about 1869 the Government resumed that inam and conferred a ryotwari patta on the ancestors of Kotayya. in 1922 the Government decided that the land was zamindari land and cancelled its order of resumption. After this Kotayya paid Nazarana to the zamindar and obtained patta from him in the year 1928. On 4th September, 1941, Kotayya executed a gift deed, Exhibit P-4, in favour of the plaintiff in respect of the said property. Kotayya died in 1942 and the defendant took possession of the property shortly thereafter. The plaintiff filed O.S.No.11 of 1943 for a declaration of her title and for possession of the suit properties. Alternatively she claimed maintenance at the rate of 4 putties and 6 tooms of paddy per year. The plaintiff’s case is that after the Government recognised the zamindar’s right in 1922, the zamindar resumed the lands and conferred a new title on Kotayya for consideration and, therefore, the gift deed in her favour was valid. Alternatively though this was not raised in the pleadings it was contended in the courts below that a boy was born to her, that he died on the next day and that she succeeded to him as his mother. She also pleaded that the clause in the partition deed conferring a title on the defendant was repugnant to the absolute interest conferred on her husband and was therefore void. The defendant contended that as the plaintiff had no children he became the absolute owner of the properties under Exhibit D-1 subject to the maintenance. The learned Subordinate Judge held that a son was born to the plaintiff and that but for the occurring of that contingency, the property would have devolved upon the defendant. He found that the patta conferred upon Kotayya by the zamindar Was only in recognition of the pie-existing rights in the family and did not create a new title in him. He was also of the view that the maintenance fixed under the document was rather inadequate but that the reasonable rate would be two putties per year. Pursuant to the aforesaid finding he gave a declaration that she was entitled to a life estate in the suit properties and directed possession of the suit properties. The defendant preferred an appeal to the District Court, A.S.No.193 of 1945. The learned District Judge on the evidence found that the child was only a still-born one. He agreed with the Subordinate Judge that the partition deed was valid and that Kotayya did not acquire a fresh title by the patta issued by the zamindar. As he held that the child was not born alive, he modified the decree of the Subordinate Judge and gave a decree instead for maintenance. The plaintiff has preferred the above second appeal.

The learned counsel for the appellant raised before me the points his client had unsuccessfully pressed before the Court below. The learned counsel argued that the clause in the partition deed restricting Kotayya’s right to dispose off the property by gift or sa