[FN* Present–. Members of the Judicial Committee.—The Right Hon. the Lord Justice Knight Bruce, the. Right Hon. Sir Edward Ryan, and the Right Hon. the Lord Justice Turner.

Assessors,--The Right Hon. Sir Lawrence Peel, and the Right Hon. Sir James W. Colvile.]

 

On appeal from the Sudder Dewanny Adawlut at Madras

 

Hindu Law--Impartible Estate-Incidents of and succession to-Joint family property and separate property-Tests to determine--Distinction between-Survivorship--Foundation. of right of--Grant to one member of family--If separate or joint family property--Partitioned property--Nature of--Widow's estate--Nature of -Decree against widow--If res Judicata against reversioner.

 

The Zemindary of Shivaganga in Madras is in the nature of Principality, impartible, and capable of enjoyment by only one member of the family at a time.

 

By the law of inheritance prevailing in Madras and throughout the southern parts of India, separate acquired estate descends to a widow, in default of male issue of the deceased husband.

 

The interest of a Hindoo widow so succeeding to her husband's estate is similar to that of a tenant in tail by the English law, as representing the inheritance.

 

In a united Hindoo family where there is ancestral property, and one of the members of the family acquires separate estate, on the death of that member such separate acquired estate does not fall into the common stock, but descends to the male issue, if any, of the acquirer, or in default, to his daughters, who, while they take their father's share in the ancestral property, subject to all the rights of co-parceners, inherit the self-acquired estate free from such rights.

 

Where property belonging in common to a united Hindoo family has [*544]

 

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In this case the appeal was brought from a decree of the Civil Court of Madura, dated the 27th of December, 1847, by which the Respondent's father, Gowery Taver, the son of Oya Taver, was held entitled to the Zemindary of Shivagunga, as heir to the Appellant's [*544]

 

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been divided, the share of a deceased member of the family goes in the general course of descent of separate acquired property; but if there is a co-partnership between the different members of the united family survivorship follows.

 

Upon the principle of survivorship, the right of the co-partners in the undivided estate overrides the widow's right of succession; but with respect to self-acquired property of a member of the united family, the other members of the family have neither community of interest, nor unity of possession, therefore, the foundation of the right to take by survivorship fails.

 

A decree in a suit by A. against B,, claiming as widow, to succeed to her husband's estate, in preference to B., his nephew, on the ground of the family being divided, held not to operate a res judicata. or capable of being pleaded in bar to a suit by C., a daughter, claiming to succeed to the family being divided, held not to operate as res judicata, or capable of self-acquired by her father. Such judgment, though viewed otherwise by the Court below, determines only an issue raised concerning a particular person, and is not a judgment in rem, but simply a judgment inter partes.

 

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father, Gowery Vallabha Taver, in preference to Anga Moottoo Natchiar, the surviving widow of the latter, on the ground that Appellant's father and his elder brother, Oya Taver, were undivided brothers. The appeal also embraced the decrees of the Sudder Adawlut Court at Madras, dated the 19th of April, 1852, the 5th of November, 1859, the 3rd of March, 1860, and the decree of the Civil Court of Madura of the 25th of August, 1859, in which it was held that the Appellant, claiming as heir in remainder after the death of the surviving widow, Anga Moottoo Natchiar, was not entitled either to appeal from the decree of the 27th of December, 1847, or to prosecute a new suit to recover the Zemindary.

 

The property claimed comprised, the Zemindary of Shivagunga, a Zemindary of very great value, situate in the District of Madura in the Presidency of Madras, together with other property and mesne profits to a very large amount.

 

The circumstances of the case, the history of the Zemindary of Shivagunga, and of the extensive litigation respecting the succession, were as follow:--

 

The Zemindary of Shivagunga was created by  [*545] Saadut Ally Khan, Nabob of the Carnatic, in the year 1730, and it was given as an hereditary fief by him to Shasavarna Odkya Taver, of the family of Nalcooty, of the Marawa caste, in reward for his military services. Shasavarna was on his death succeeded by his only son, Vadooganada, who was killed in battle. Vadooganada had an infant daughter by his wife, Ranee Velu, but no other child. It appeared that two persons named Vella Murdoo and Chinna Murdoo then usurped the actual government of the Zemindary, and ultimately wrested from the Nabob of the Carnatic his acquiescence in the nominal tenure of the Zemindarship by Ranee Velu. Velu gave her daughter by Vadooganada in marriage to one Vengam Odaya Taver. The daughter died in giving birth to her first child, and the child survived. its mother but a short period. Both died in the lifetime of the Ranee Velu, who was thus left issueless. It also appeared that the Appellant's father lived at Shivaguga with the Ranee, who, it was alleged, had adopted him. The parties who then appeared to be entitled to the Zemindary were two brothers, Oya Taver and Gowery Vailabha Taver, collateral descendants from the progenitors of Shasavarna. Gowery Vallabha Taver was at this time about twenty-nine years of age. Oya Taver was his senior in years, but sickly and infirm. The two brothers were the nearest relations of Vadooganada, and also of Shasavarna. Vella. Murdoo and Chinna Murdoo, on the death of Ranee Velu, expelled Oya Taver and Gowery Vallabha Taver from the Zemindary, and joined a rebellion against the Government. This rebellion was put down by the East India Company.

 

By the Treaty of the 12th of July, 1792, all sovereign power over the Poligar countries, including the Zemindary of Shivagunga, was transferred in perpetuity by the then Nabob of the Carnatic to the East [*546]

 

By a proclamation of Lord Clive, dated the 6th of July, 1801, the Government transferred the Zemindary, which, it appeared, was treated by the Government as an escheat for want of lineal heirs, to the Appellant's father, Gowery Vallabha Taver, otherwise called Permettoor Worria Taver, or Woya Taver, who was collaterally descended from the progenitors of the first Zemindar, and appointed him Zemindar of Shivagunga.

 

By a Sunnudi Milkeat Istimrar, or deed of permanent settlement, dated the 22nd of April, 1803, the Zerniudary was confirmed to the Appellant's father, to hold in perpetuity, with power to transfer the same by sale or gift, on payment to the Government of a permanent annual jumma. From the time of his investiture in 1801, until his death in 1829, Appellant's father continued the sole Zemindar.

 

The principal questions involved in the appeal were, first, whether the. Appellant's father and his brother, Oya Taver, were divided brothers; and, secondly, if the Zemindary was the self-acquired estate of the Appellant's father. It was alleged by the present Appellant that her father, and his elder brother, Oya Taver, had divided their ancestral and other property at Padanattoor and elsewhere, which they held as principal flyots under the former Zemindar of Shivagunga. This division it was said was effected by deeds executed in the year 1792, after which Appellant's father remained with Ranee Velu at Shivagunga, which was some distance from Padarnattoor, where Oya Taver continued to reside, Padaniattoor having fallen to his share on the division. It appeared that by a Moochilka, or lease, dated the 17th of July, 1803, the elder brother, Oya Taver, leased from the Appellant's father eight villages, part of the Zemindary, in permanent lease, at a fixed teerva (rent) of  [*547] Pons 3,157. These villages. were held under the Moochilka by Oya Taver until his death on the 17th of. April, 1815, he, having paid the teerva to his brother, with the exception of some arrears due at his death. By a Moochilka, dated the 24th of July, 1815, Moottoo Vadooga Taver, also called Woya Paver, the eldest son of Oya Taver, rented the same villages at the same rent a similar manner from the Zernmndar, at . the same time, binding himself to pay the, arrears due from his father. In the year 1820, Moottoo Vadooqa made claim to the eight villages as Zemmudar of a separate Paliaput, at Padarnattoor and. created some disturbance, refusing to pay the rent to his uncle, the Appellant's father.

 

This gave rise to a suit being instituted on the 1st of March, 1823, by the Appellant's father against Monttoo Vadooga and his two brothers,  Gowery Vallabha and Bodha Gooroo Swamy Taver, the three sons of Oya Taver, to recover the eight villages s forfeited for non-payment of teerva, founding his right upon the gift of the Zemindary to him by the Government in 1801, and the two Moochilkas in 1803 and 1815. Moottoo Vadooga and his two brothers med their answer and thereby set up, by way of de fence, first, that they were entitled to the whole Zemindar, of Shivagunga as the elder branch of the family, and. that the Proclamation of Lord Clive in 1801 was in favour of their father, and that it treated the Appellant's father as a mere manager for his elder brother; secondly, that the eight villages of Padamattoor formed a sub-Paliaput attached to Shivigunga, which had been enjoyed by Oya Taver and his ancestors as their own property; thirdly, that the Moochilkas were fabrications of the Appellant's father; and lastly, that the Zemindary was [*548] not the self-acquisition of the Appellant's father, but had been enjoyed by him and his brother as undivided brothers. The Appellant's father, by his replication, denied that the eight villages formed a separate Paliaput, and rested his case upon his self-acquisition of the Zemindary, and upon the Moochilkas.

 

This suit was compromised by a Razinamah, dated the 5th of January, 1826, to the effect, that the Defendants had no right whatever to the Shivagunga Zernindary, or to the other estate thereto belonging, as stated in the answer; and it was agreed that the Defendants should enjoy the eight villages under the Appellant's father, paying to him a kist of 1,000 pagodas annually, and that the Defendants should also pay a part of the arrears of kist, the rest being remitted by the Appellant's father.

 

Under this arrangement Moottoo Vadooga and his brothers held the eight villages, paying the kist to the Appellant's father, until his death, which event took place in the year 1829.

 

On the death of the Appellant's father, Moottoo Vadooga produced an alleged Will of the Appellant's father, dated the 17th of June, 1829, the day of his death, which purported to give him the Zemindary, in case the child of which the Zemindar's fifth wife was then enceinte should prove not to be a male.

 

The Appellant's father during his lifetime had seven wives. He died without leaving any male issue, but left three widows, one of whom, Purvata Natchiar, was enceinte. Purvata Natchiar, the sixth wife and second widow, was, after the death of her husband, delivered of a female child, thereupon the Government made over the Zemindary to Moottoo Vadooga. Claims were,  [*549] however, preferred to the Zemindary by the three surviving widows, Anga Moottoo Natchiar, Purvata Natchiar, and Moottoo Veray Natchiar; and a claim was also set up by the son of Cota Natchiar a daughter of the late Zemindar, as having been adopted by Purvata Natchiar. The claims of Moottoo Vadooga being supported by many of the family, the three widows were induced to give up their claims and that of the alleged adopted son of Cota Natchiar and on the 29th of July, 1830, to execute a Razinamah admitting the right of Moottoo Vadooga as Zemindar, upon having certain lands made over to them for their maintenance. Moottoo Vadooga was then installed as Zemindar of Shivagunga by the Government, acting upon the Razinamah of the widows. On the 21st of June, 1831, Moottoo Vadooga died, and was succeeded and possession of the Zemindary taken, by his son, Bodha Gooroo Saunny Taver.

 

On the 23rd of March, 1832, Velu Natchiar a daughter of the Appellant's father, on behalf of her infant son, Mattoo Vadooga Taver, filed a plaint, No. 4, of 1832, in the Provincial Court of the Southern division of Madras against Bodha Gooroo Saunny Taver to recover the Zemindary, on the ground that her son was the senior grandson of the first wife of the Appellant's father, and as such his heir, according, as alleged by her, to an answer of the Appellant's father to Government touching the succession, dated the 11th of April, 1822, by which grandsons through daughters were to be preferred to widows, and she insisted that the Appellant's father and his brother constituted a divided family, and that the alleged Will was a fabrication.

 

Bodha Gooroo Sawrny Taver by his answer to this suit insisted, that the Appellant's father had only acted as [*550] Zemindar by sufferance of his elder brother, Oya Taver; that the Appellants father, by an order of succession dated 22nd of September, 1806, had pointed out his nephews as his heirs in case of, failure of sons; that the Will of Appellant's father was a valid Will; and that in case of partible estates, nephews were preferred to daughters' sons, and widows; and. in his rejoinder to the Plaintiff's reply he urged in addition, that the self- acquisitions of an undivided brother descend, on his death without the male issue, to his brothers and nephews in preference to widows and daughters and daughters' sons.

 

Points were recorded by the Court, but the point of division, or no division, was not included, and the opinion of Pundits of the Sudder Court was taken on the following case--"A Zemindary was held by a certain person, after whom it was enjoyed by his son, his son's widow, and his son's daughter. The daughter having been married, produced a daughter, who died without issue. All of the above parties being dead, the Government published a proclamation, that the hereditary right of succession to the  Zemindary was extinct, and that the Zemindary had escheated to the State. The Government therefore conferred the Zemindary on A., who was collaterally descended from the original Zemindar, and granted him the usual Sunnud of permanent property for it.

 

"A. married seven wives, of whom three were living at the time of his death. The first wife had a daughter, who bore three sons and a daughter. The second wife had a daughter who bore a daughter. The third wife had three daughters the first of whom bore a son and two daughters, the second a [*551] son, and the third was not married. The fourth, fifth, and seventh wives had no issue. The sixth wife had a daughter, who was not married.

 

"A. had. an elder undivided brother, B., who died before A., but some years after the Zemindary had been granted to A., leaving three sons. the eldest of whom, C., on the death of A., took possession of the Zemindary, and continued to hold it until his death, after which he was succeeded by his son, D., who is. now in possession of the Zemindary.

 

Question first.--The Zemindary having escheated to the Government, and having by them been granted anew to A., and being therefore in the light of self-acquired property, to whom ought it, after his death, under the principles of Hindoo law, to have descended to the widows of A. and their descendants, or to C., the son of the elder brother, B.?

 

"Question second.--Supposing the line of descent to be in the widows and their descendants, who should be considered the heir-the eldest surviving widow, or the eldest son of the daughter of the first widow deceased?

 

"Question third.--Would it have been consonant with Hindoo law for A. to have adopted one of his grandsons (daughter's son) as his son?

 

"Question fourth.--Supposing A. to have left a Will in favour of his elder brother's son, C., constituting him heir to the Zemindary and to the rest of his property, to the exclusion of his wives, daughters, and grandchildren, would such Will be valid under the principles of Hindoo law?"

 

To this case the Pundits on the 28th of October, 1833, returned the following answers:--"To the first Query.--The Zemindary granted. by Government [*552] to A. should descend, after his death, to the son of his eldest undivided brother.

 

"To the second Query.--As the Zemindary should so descend, the widows of A. and their offspring are not entitled to it.

 

"To the third Query.--A. should have adopted one of his daughter's sons, 'Dowhittras,' and it would have been agreeable to the Hindoo law.

 

"To the fourth Query.--If A. had left a Will entitling his nephew, C., to the Zemindary and other property, to the prejudice of his widows, his daughters, and to his grandsons, such a Will will be consonant to the Hindoo law; but the nephew is, however, bound to allow maintenance to the widows of A. Such are the texts propounded in Vignyaneswara, Smriti Chandrika, and so forth."

 

Witnesses were examined to prove the alleged fact of the division between the Appellant's father and his brother, Oya Taver; the self-acquisition, the forging of the Will, and the opinion of the Appellant's father on the order of succession in 1822, whereupon the Provincial Court, acting on the opinion of the Pundits, passed a decree in favour of the Defendant.

 

Anga Mootoo Natchiar then asserted her claim, as eldest widow of the late Gowery Vallabha, Taver, as heir to the Zemindary, and in the year 1833, filed a plaint in forma pauperis, No. 3 of 1833, in the Provincial Court of the Southern division of Madras against Bodha Gooroo Sawmy Taver, claiming the Zemindary as heir to her husband, and stating that the last Ranee had adopted her husband, to whom the Government confirmed the Zemindary by sunnud.; that the Defendant had taken forcible possession of her husband's property and deeds; that he had forged a Will; and [*553] that advantage had been taken of her to execute the Razinamah in ignorance of her rights, as being a Hindoo widow she was not allowed to appear in public.

 

The Defendant by his answer denied the alleged adoption, and stated that the management of the Zemindary was conceded by Oya Taver, the rightful heir, to his younger brother; he denied also that the Will was a forgery, and set up the order of succession in the arzee of 1806, and relied also on the Razinamah executed in July, 1830, by the widows.

 

The issue of division or non-division, of the brothers, was not raised in this suit.

 

The Provincial Court, by a decree made on the 5th of September, 1834, in this suit, decided in favour of the Defendant, on grounds that no adoption of Appellant's father by the Ranee had been proved; that his claim to the Zemindary was from the free choice of the Government; and (assuming that the brothers were undivided) that the self- acquired estate of an undivided brother, dying without male issue, descended to his nephew in preference to his widow.

 

The Provincial Court also, by a decree dated the 5th of December, 1834, decided against the Plaintiff in the suit, No. 4, of 1832.

 

The Plaintiffs in the two suits of 1832 and 1833 appealed to the Sudder Dewanny Court at Madras.

 

Upon the appeals coming on for hearing, the Sudder Court submitted to the Pundits attached to that Court the following questions:--First, is the succession to the separate self-acquired property of a member of an undivided family governed by the same rules as the succession to the joint property of such family? Second, the self-acquired property of an individual [*554] not being liable to division, according to the Hindoo law, how can it be maintained that such property can be inherited by the brother in preference to the widow of the possessor?

 

The answer of the Pundits, dated the 16th of January, 1837, to the first question was, "By saying that the separate self-acquired property of a member of an undivided family is not liable to division, is meant nothing more particular than that, at the time of partition of the common things, the acquirer of the said property, or his son, son's son, or grandson, need not give a share to the cousins out of the said property. Consequently, the succession to the separate self-acquired property of a member of an undivided family who died leaving no son, son's son, or son's grandson, is governed by the same rules as the succession to the joint property of such family." And to the second question, "The Dharma Sastras declare, as sanctioned by the established usage, that among the undivided brothers if one die without male issue the rest of his undivided brothers, &c., shall, take the whole of his wealth and support his widows; but they do not declare, nor is it customary, that the separate self-acquired property of an undivided brother dying without male offspring should be given away to his widows. As it is, therefore, settled that the widow of an undivided brother who died leaving no son is entitled only to receive a maintenance, but not to succeed to any kind of property to which her husband had possessed a right, it cannot be properly maintained that such self-acquired property can be inherited by the undivided brother of the possessor  I in preference to his widow." Authorities: "The text of Vrihaspaty and its commentary, clearly show [*555] that the widow shall take the whole estate of a man' who, being separated from his co-heirs, dies leaving no male issue, and that the whole property of her husband who lived in a united family and died leaving no male offspring shall devolve on his father, brothers, &c., who were not separated from him. The text of Narada propounds that, among the undivided brothers if one die without male offspring or enter a religious order, the rest of the brethren shall divide his wealth, except the wife's separate property. Consequently, the texts of Vrihaspaty and Narada, and the commentaries there- of, and the text of Yajnawalkeya, declaratory of the right of the widow, daughters, &c., and the commentary thereof (contained in the law Book Mitacshara), furnish an authority to maintain that the self-acquired property of an undivided brother can devolve on his undivided brothers after his death."

 

On the 17th of. April, 1837, the Sudder Court pronounced .a decree in the two appeals, dismissing the appeal on behalf of Moottoo Vadooga Taver, and deciding in favour of Anga Moottoo Natchiar's appeal, on the grounds, that no adoption had been made by the Appellant's father; that a widow was preferred to a daughter's son; that the Appellant's father and his brother were divided; that the self-acquired property of a divided brother descended to his widow in preference to his brother's son; that the Will was a forgery and, lastly, that the Razinamah of 1830, was not binding on Anga Moottoo Natchiar.

 

The decree of the Sudder Court being founded on the assumption that the two brothers were divided, Bodha Gooroo Sawrny Taver applied for a review of judgment, on the ground, that the Appellant's father had, in three suits, in the year 1804, [*556] pleaded that he and his brother Oya Taver were undivided, but the Sudder Court refused such review. Bodha Gooroo Sawmy Taver then appealed to Her Majesty in Council from the decree of the Sudder Court, and, having died pending the appeal, the appeal was, on the 15th of January, 1842, revived by Gowery Taver, his brother, the Respondent's father. On this appeal a decree was made by the Judicial Committee, and confirmed by an Order in Council, dated the 18th of June, 1844, by which the decree of the Sudder Court of the 17th of April. 1837, was reversed, on the ground that no points had been recorded in the Court below, as required by Mad. Reg. XV., of 1816, on the question of division or no division of the family; but leave was given to the widow to bring a new suit within three years, their Lordships stating that the question of division was a most substantial question, and, without making any order on the subject, intimated that the question of division or no division appeared to be the only point on which the title would ultimately depend (a).

 

On the 2nd of September, 1844, Gowery Tavey was put into possession of the Zemindary by Order of the Sudder Court.

 

In consequence of the leave given in the above appeal by the Judicial Committee of the Privy Council, Anga Moottoo Natchiar flied, a plaint in forma pauperis, No. 2, of 1845, in the Civil Court of Madura, against Gowery Taver and his younger brother, Namasivaya Taver, to recover the Zemindary. The plaint set forth the facts hereinbefore detailed, and the Plaintiff claimed to be heir of her deceased husband, shaping her case in

 

(a) See case reported, 3 Moore's Ind. App. Cases, p. 278.

 

[*557] a twofold manner; first, on the assumption that it was incumbent on her to prove that her husband and his brother, Oya Taver, were divided; that the divided character of the family was established by the division and deeds which it was alleged had been taken possession of with the other documents by Moottoo Vadooga, on the death of her husband; by the adoption of her husband by the Ranee, and his separate residence with the Ranee for many years; by the self-acquisition of the Zemindary from the Government, and the homage paid to him by his elder brother; by the Moochilkas and leases of Padamattoor and the eight villages by her husband to Oya Taver and his sons; by the separate residence of the latter at Padamattoor, a long distance from Shivagu'nga; and by the Razinamah in 1826 of Bodha Gooroo Swamy Taver, admitting that the Zemindary was the self-acquired and separate estate of her husband, and that his elder brother had no right to it. Secondly, she alleged that the question of division or no division, was really immaterial, on the ground that, according to the Hindoo law, undivided brothers had no right to share in the se1f-acquired and separate estate of their brother, either in his lifetime or by descent, and she set out in detail the alleged forgeries of Bodha Gooroo Sawmy Taver to prove the undivided character of the family, and claimed the Zemindary and the mesne profits thereof, with other personal property.

 

Gowery Taver, the first Defendant, by his answer, set up the answer of the Appellant's father of 1806 as to succession; the alleged Will; the Razinamah of the widows, and the Pundits' opinion in the Sudder Court in 1837; he contended, moreover, that the Plaintiff ought, in the suit, to have confined [*558] herself to the question of division or no division; that the acquisition of Appellant's father was by right of cousinship and by consent of the elder brother, and he 'denied the adoption and division, contending that the division ought to have been set up by Plaintiff in her former suit, and in the appeal before the Sudder Court, and he further denied the Hindoo law set up by Plaintiff, as to the descent of self-acquisitions of an undivided brother; he also denied that the forgeries were the work of his brother.

 

Witnesses were called by the Plaintiff to prove the deeds of division and the actual division between Appellant's father and his brother in 1792, of the Padamattoor lands, and all their property, consisting of Nunja and Puuja lands, Ulava and Kavil lands, cows, sheep, some ornaments, coins, and debts; that the house at Padamattoor was taken by the elder brother, and the house at Seruvayal by the Appellant's father; that the brothers always lived separate, the Appellant's father living with Ranee Velu, at Shivagunga.

 

On the other hand, the Defendants called witnesses to prove the brothers were undivided; that the brothers enjoyed the house and Padamattoor lands in common till the year 1794 most of the witnesses spoke to this period, which was only two years' difference from the Plaintiff's witnesses; that they performed religious ceremonies jointly, as well before as after the year 1794. Some of the witnesses de- posed that the Padamattoor lands were enjoyed in common, though when pressed they admitted that kist was paid for the eight villages by Oya Taver to his brother, Gowery Vallabha Taver, as the Zemindar. The witnesses accounted for the separate residence of Oya Taver at Padamattoor by reason that the water [*559] of Shivagunga did not agree with him, and on an alleged admission by the Appellant's father, whilst the suit of 1823 was pending, that he did not then set up a division.

 

On the 27th of December, 1847, the Civil Judge, Mr. Baynes, passed his decree, which was, in substance, to this effect, that the only point was the division of the brothers in the year 1792; and be was of opinion that the oral evidence on either side was equally worthless, but, if anything, that the Defendant's witnesses were least credible; that the Moochilkas proved no division; that the Razinamah, in suit, No. 4, of 1823, though by it the Defendant's father renounced "the right to compel Appellant's father to divide the Zemindary in his lifetime," did not prejudice his right as undivided heir; that the opinion of the Appellant's father, on the succession in 1806 and 1822 was more consistent with the fact of no division having taken place. That the depositions in the suit, No. 4 of 1832, on the point of division, though bearing the probability of truth on them as having been given on an incidental point, were not to be implicitly relied on, and, therefore, they were rejected by the Court altogether; that the Razinamah of the widows in 1830 was binding on 'them, though given when they were ignorant of their rights; that the forgery of the Will by the Defendant's father ought not to be pushed against him as betraying any consciousness of a want of title; and the decree concluded by deciding that the brothers were undivided, and dismissed the suit with costs. At the same time the Court held that the Plaintiff as widow was entitled to an adequate maintenance.

 

This was the first of the appeals now brought before the Judicial Committee of the Privy Council [*560] From this decree Anga Moottoo Natchiar appealed, in forma pauperis, to the Sudder Dewanny Court at Madras: the appeal being entitled, No. 7, of 1849.

 

Pending the appeal Gowery Taver died, and left the Respondent, his eldest son and heir, then an infant, who revived the appeal.

 

The appeal, No. 7, of 1849, having been heard, the Sudder Court reserved its judgment; but, in the meantime, on the 23rd of June, 1850, Anga Moottoo Natchiar died childless, and the appeal, was held by the Sudder Court to have abated; and the Court issued a notice to the heirs of Anga Moottoo Natchiar to come forward within six weeks and continue the suit.

 

The sixth and seventh widows having pre-deceased Anga Moottoo Natchiar, several claimants presented themselves as heirs in remainder to the Zemindary, as being the separate estate of Appellant's father, but these claimants were afterwards reduced to two. First, the Appellant as the younger daughter of the Zemindar by his third wife, who had died in his lifetime, the Appellant then having a husband and sons, and joining with her two sisters, Bootakha Natchiar and Kota Natchiar, both of whom were since deceased. Secondly, Sowmea Natchiar, a daughter of the Zemindar by his sixth wife, the second widow.

 

On the 24th of August, 1850, the Appellant and her two sisters filed their petition in the Sudder Court, claiming to carry on the appeal, as heirs in remainder to the Appellant's father, in succession to Anga Moottoo Natchiar deceased, as agreeing between themselves for the enjoyment successively, by Hoo.. akha Natchiar and Kota Natchiar, for their successive lives, with ultimate remainder to the Appellant; and Sowmea. Natchiar filed her petition, claiming to [*561] carry on the appeal as heiress, niece and devisee of Anga Moottoo Natchiar.

 

Vadooga Taver, on the 26th of September, 1850, the Plaintiff in the original suit of the 23rd of March, 1832, No. 4 of that year, filed a petition claiming as heir also, as being descended from the senior wife of the Appellant's father, but his claim was not prosecuted.

 

On the 26th of September and the 17th of October, 1850, the Respondent by his guardian filed counter petitions praying the Court to refuse the Appellant, and the other alleged heirs in remainder, leave to carry on such appeal, and also praying the Court to refer them to the institution of a new suit, on the ground, that in such new suit he might be able to set forth particular objections to their claims from their individual acts, such as accepting maintenance from his father and other members of his family.

 

An Order was passed by the Sudder Court, on the 21st of October, 1850, declaring that none of the claimants could be accepted as the heir of the deceased Appellant, as she was a childless widow, but that they might simply plead a right of succession on her death as the daughters of the Zemindar, and that, although the decision of the appeal might materially affect such right of succession, still that would not vest in them the right to continue it, but the Court, at the same time, observed that their order would form no bar to the institution by any of the claimants of a new action for the recognition of their alleged claims, if instituted on or before the 30th of April, 1851, and that at the expiration of that period the decree of the Civil Court would be considered final, [*562] On the 25th of November, 1850, the Appellant and her sisters filed their petition for a review of the Order of the 21st of October, 1850, stating, that Aga Moottoo Natchiar, as widow, had a life interest only in the Zemindary, and that it was only at her death that a title accrued to them as the heirs in remainder, and that during her lifetime they could not have instituted a suit, and they claimed to be entitled to a term of twelve years from the death of Anga Moottoo Natchiar to prosecute their claim.

 

Upon the presentation of these petitions the Sudder Court, on the 7th of March, 1851, submitted the following question to the Pundits of that Court, for their opinion as to what person should supply the place of Anga Moottoo Natchiar in the appeal:--"A Zemindar, A., who had married seven wives during his lifetime, died, leaving behind him his fifth wife, B.; his second wife's daughter, G.; his third wife's daughters, D. and E.; his sixth wife's daughter, F.; and his wife's grandson, G., by her daughter. B. instituted a suit claiming the succession to the Zemindary, on the ground that a family division had taken place before the death of A. Supposing the suit of B. grounded on family division to be just, you will explain who of the above mentioned individuals are entitled, under the Hindoo law, to supply the place of B., and carry on the suit?"

 

The Pundits gave to this question the following answer:--"Neither of the parties marked C., &c., in the question, as being the offspring of B.'s husband by his other wives, is legally entitled to conduct the appeal referred to; neither the daughters of rival wives, nor their sons, being authorized by the Hindoo law Books, Vijnyaneswara, &c., prevailing in this [*563] part of the country to perform funeral rights or inherit property. In prescribing the order of succession the law Book, entitled 'Vijnyaneswara,' draws no distinction between a woman's peculiar property called 'Stridhana' and that which devolved. upon her by inheritance; it on the contrary treats them jointly in propounding heirs to succeed to the property of a childless woman; further, the said law Book makes no mention of the daughter, or of the son of the daughter of a rival wife equal in class, although it speaks of the daughter of a rival wife being superior by class. The said authority likewise, in propounding the distribution of the property of a childless woman, declares that the property of a childless woman, who had been married in any of the forms denominated 'Brahma,' &c., shall (after her demise) devolve upon her husband, and on failure of him upon his nearest kinsmen sapindas; but who these sapmndas are the work does not describe (in the particular place where the said succession is mentioned); it, however, in treating upon the succession to the property of a sonless man, adverts to the text which says, 'The relation of the sapindas, or kindred connected by the funeral oblation, ceases with the seventh person.' From this is to be gathered that all the kindred sprung from the same family, or from the same primitive stock, and reaching the seventh degree in direct descending line, are 'sapinda,' kinsmen of each other; such sapindaship cannot by any possibility exist in step-daughters or their sons mentioned in the question. It is further observable, that the right of succession to the property of a deceased person is generally dependent upon the successor's competency to confer benefits [*564] on the deceased by the performance, as it is stated by the Hindoo lawgivers, of the deceased's funeral rites, but in the compact series of heirs competent to perform such exequial rights step-daughters and their sons are nowhere mentioned. It is for these reasons that we have stated in our answer of the 13th instant, 'that the daughters of a rival wife or their sons, are no heirs.' 18th of March, 1851. The head Translator of the Court having in returning this paper conveyed to us the Registrar's requisition that we should, set forth the particulars of sapindas, and specify whether or not a maiden daughter is a sapinda, and as such entitled to succeed to property, we beg to submit the required particulars as follows:--1. The law Books 'Vinyaneswara,' &c., declare that of a woman dying without issue, and who had become a wife by any of the four modes of marriage denominated 'Brahma,' 'Daiva,' 'Arisha,' and 'Prajapatya,' the whole property belongs in the first place to her husband, and on failure of him to his nearest kinsmen 'sapindas,' who are his mother, father, uterine brother, step-brother, uterine brother's son, step-brother's son, paternal grandmother, paternal grandfather, sons of ditto, grandsons of ditto, paternal great-grandfather, sons of ditto, and their issue, these persons being in the chapter on succession to the estate of a sonless man,' declared to be the nearest 'sapinda' kinsmen of the man destitute of male issue. 2. In the Book called, 'Varqdarajeyum,' chapter 'on succession to the estate of a sonless man,' section 'on daughters' succession,' the author declares a maiden daughter to be 'sapinda' of her father to enable her to inherit his property in preference to his married daughter; [*566] but in the chapter 'on succession to the property of a 'childless woman,' the said author does not declare a daughter entitled •to inherit the property of her step-mother. The sapindaship of an unmarried daughter is but temporary, inasmuch as it ceases with her marriage. It only tend to invest her with inheritance in preference to married daughters who are not 'sapindas,' but it cannot give her any right to succeed to the property of her step-mother who leaves no issue behind her. Impressed with this opinion, we have stated that daughters of rival wives are in general not entitled. to inherit the property of their step-mothers."

 

On, the 28th of April, 1851, the Sudder Court put to the Pundits this further question--"Your attention is requested to the annexed genealogical trees, and you will be pleased to state whether anything thereon leads you to modify the opinions expressed by you on the 18th and 20th of March, 1851, and to that question the Pundits made the following reply- We have perused the four genealogical trees annexed to the foregoing question, and observe that all the parties therein referred to are B.'s step-daughters, and 'their 'Sons and daughters, who by the Hindoo law Books, 'Vijnyaneswara,' &c., which prevail in this part of India, are not entitled either to perform funeral rites or to inherit property. We, therefore, see nothing to induce us to modify the opinion already expressed by us that the said parties have right at all.

 

On the 1st of May, 1851, the Sudder Court revoked their Order of the 21st of October, 1850, and directed the appeal to be replaced upon the file and the present Appellant and the other [*566] claimants to be made supplemental Appellants, and the Court resolved at once to hear the appeal, and that if it should be sustained, the Court would then determine (in order that the rights of Appellant and the other supplemental Appellants as against each other and as against the Respondent might be tried) whether the record should be remanded to the Court of original jurisdiction, or whether any other more appropriate course could be pursued in regard to he same.

 

Accordingly the Appellant and the other heirs in remainder prosecuted the appeal suit, No. 7 of 1849, as supplemental Appellants, and several proceedings were had therein.

 

On the 22nd of March, 1852, the Sudder Court put the following question to its Pundits in reference to the appeal suit, No. 7 of 1849:--"A Zemindar, A., married during his life seven wives, and died, leaving behind him B., his fifth wife; C., his daughter by his second wife; D. arid E., his daughters by his third wife; and F., his daughter by his first wife; and. G., the son of his daughter by his first wife. The fifth wife also died subsequently. Supposing the family to be divided, can the above-mentioned individuals be admitted to be the heir, or heirs, of the deceased Zemindar, A. If such admission is made, who are his heirs You will explain this subject." On the same day the Pundits returned the following answer:--"According to the passage in the section on the right of inheritance to the estate of a man dying without male issue, B., the fifth wife of A., succeeded to the whole of his estate on his death. Neither the daughters of A., nor the descendants of such daughters, have a right to the said estate during [*567] the lifetime of the said B. Therefore, the estate having devolved on B. by the death of her husband, her daughters arid others must be her heirs. Neither the daughters of A., nor the descendants of such" daughters who belong to a line different from that of B., can be recognized as heirs to the said testate."

 

This Sudder Court afterwards put the following further question to the Pundits, in reference to the suit, No. 7 of 1849:--"A., a Zemindar who had married seven wives during his lifetime, died, leaving behind him B., C., and D., the fifth, sixth, and seventh wives; E., his daughter by the sixth wife, C.; F., his daughter by the first wife; I., J., and K., daughters by the third wife, and nine individuals his grandsons, by his daughters. by the first and second wives who died before him. Subsequently C. and D. died, and B., the fifth wife, a few years after them. Supposing the family of A. to be divided, can any of the above- mentioned individuals be admitted as heir, or heirs, to the Zemindary, and if such admission is made, who shall be considered as heir'? You will explain this."

 

The Pundits gave to that question the following answer--"Although the fifth, sixth, and seventh wives, who survived the Zemindar, A., possessed the power of wives, yet the Hindoo law, entitled Smriti Chandrika, confers the right of the Zemindary upon the sixth wife, because she has a daughter. The daughter of the sixth wife is, therefore, entitled to the Zernindary after her mother's death."

 

When the supplemental appeal came on to be heard, the Sudder Court, by an Order dated the 19th of April, 1852, reversed their Order of the 1st of May, 1851, on the ground that, as the Appellant and the other parties [*568] claiming as heirs did not claim as representatives to the late Appellant, the widow, but on their own distinct rights as descendants of Appellant's father, they could not be substituted for her, and carry on her appeal, but the Court informed the Appellant and the other parties claiming as heirs in remainder, that they could pursue their rights in the Zillah Court in the first instance, and the Court struck the appeal suit, No. 7 of 1849, off the file, as having abated on the death of the Appellant, Anga Moottoo Natchiar.

 

This was the first decretal Order now appealed from.

 

The Respondent, by his guardian, being dissatisfied with this Order, filed a petition in the Sudder Court, insisting that though upon the abatement of the appeal suit by the death of the widow, the next heir after her claiming under the same title might be entitled to revive such appeal, yet she could not institute a new suit in the Zillah Court, after a judgment by such Court in the suit by the widow claiming as previous heir, and submitted, that it was competent for the Sudder Court, to admit the party next in descent, claiming under the same title, as a supplemental Appellant, and in his petition he entered at great length into the hardship of being obliged again to litigate the question of division or no division of the family, and finally prayed for a review of the Order of the 19th of April, 1852.

 

By an Order of the 16th of September, 1852, the Sudder Court adhered to their previous Order of the 19th of April, 1852.

 

 The Appellant then, in the first instance, applied to the Civil Court of Madura for leave to sue in forma pauperis, and that Court, by an Order of the 16th of June, 1854. referred certain questions upon points of [*569] Hindoo law raised in the case to the law officers of the Court, and after receiving the Futwah of the Pundits, rejected the Appellant's application, by an Order of the 6th of November, 1854; and after several other Orders made by the Civil Judge, and appeals to the Sudder Court, the latter Court ultimately by a further Order, dated the 10th of March, 1856, declared that the Order of the Civil Judge disposed simply of Appellant's application to sue in forma pauperis, and that it was no bar to her prosecuting her claim in the usual form.

 

Accordingly, on the 5th of December, 1856, the Appellant filed her plaint in a suit, No. 10 of 1856, in the Civil Court of Madura, against the guardian of Respondent, then a minor, and the Collector of Madura, as agent of the Court of Wards, for the recovery of the Zemindary and also of the profits thereof for six years; claiming the Zemindary, as having been the divided and self-acquired estate of her father; contending that, even if the brothers were undivided, the self-acquired property of an undivided brother descended to his widows and daughters in preference to his nephews; and that she was entitled as the next heiress in remainder of the Zemindary, after the death of Anga Moottoo Natchiar.

 

The guardian of the Respondent (the minor Zemindar) by his answer objected to the competency of the suit, as the cause of action had arisen upwards of twelve years previous to the institution thereof, and was barred, under cl. 4, sec. 18, Mad. Reg. II. of 1802, as the Appellant's father had died in June, 1829; and he set up the Orders of the Sudder Court of the 21st of October, 1850, the 1st of May, 1851, the 19th '.of April and 16th of September, 1852, as a bar to the [*570] suit. The answer also denied the Appellant's title as next heiress, and challenged, the fact that the Zemindary had been the divided estate of Appellant's father, entering at great length into the merits to prove that the estate was undivided.

 

The other Defendant, the Collector of Madura, by his answer disclaimed any right in the Zemindary.

 

Sowmea Natchiar, claiming to be the sole heiress of Gowery Vallabha Taver, as his only daughter by his sixth wife, then commenced a suit, No. 4 of 1857, against the Respondent, to recover the Zemindary. The Respondent, among other things, pleaded the d_cree of the 27th of December, 1847, in bar to that suit.

 

No evidence was allowed to be entered into by the Appellant in the suit, No. 10 of 1856, nor were any points recorded therein.

 

On the 25th of August, 1859, the Judge of the Civil Court, Mr. R. Cotton, dismissed the suit of the Appellant, and of her, sister, Sowmea Natchiar, in the suit No. 4 of 1857. The material part of the decree made in both suits was as follows.--"The Plaintiffs in both the suits sue the guardian of the present minor Zemindar, and the Collector of Madura, as the agent for the Court of Wards, for the recovery of the Shivagunga Zemindary, each averring herself to be the sole heiress of the deceased Zemindar, Gowery Vallabha Taver, who died in 1829. The Plaintiff in the original suit, No. 10 of 1856, as his only surviving daughter having male issue; the Plaintiff in the original suit, No. 4 of 1857, as the only daughter of the widow (sixth) who survived her husband--both assert their father was divided from his brother, Oya Taver. The Plaintiff in the suit, No. 10 of 1856, states, that she sues [*571] for the estate solely as the only surviving daughter of her father the late Zemindar, having male issue, not as heir or successor to Anga Moottoo Natchiar; that her suit is based on the pleaded division between her at her and his brother, and. that if they were un- divided she has no claim to the ancestral property, but still claimed the Zemindary, as the self-acquired property of her father, under the law contained in pages 33, 152, 153, and 155 of Macnaghten's "Hindu Law," Vol. II. If the brothers were divided, she asserts that the law, as propounded by the Madras Pundits in appeal, No. 20 of 1838, and by the Bengal Pundits in their Futwah of the 23rd of February, 1837, and enumerated in a paper put in, establishes, her right. The Plaintiff in the original suit, No. 4 of 1857, states, that she sues as the daughter of the Zemindar's surviving widow--the other two widows (fifth and seventh) who survived the Zemindar having died childless; she avers, however, that had they been living now they would have no right to the estate: thus admitting that her right to the estate commenced on the death of her mother in 1832, when she was in her sixth year, and that her present plaint was presented only on the 24th of June, 1856, or twenty-three and. a half years after the death of her mother; that if her father and his brothers were divided, as she pleads, her right is clear by the Futwahs of the Madras and Bengal Pundits; if undivided, by that of the latter only. The Court proceeds to determine--first, whether it is competent to allow the plea of division to be advanced. The facts of the case are briefly as follows:--Anga Moottoo Natchiar, the mother of the Plaintiff in the original suit, No. 4 of 1857, instituted a suit, No. 3 of 1833, before the Southern Provincial Court her, suit [*572] was dismissed; the Judges considering that as the late Zemindar and his brother were undivided, the Pundits' Futwahs clearly showed she had no right to succeed her husband. In appeal, the Judges of the Sudder Court were of opinion, that the evidence adduced was sufficient to show that a division had taken place; and the law officers of their Court having, under these circumstances, declared the widow was the heir of her husband, they reversed the lower Court's decision, awarding the estate to Anga Moottoo Natchiar. On appeal to Her Majesty in Council, it was discovered that the very material question of division or non- division, on which the case hinged, had never been made a point, nor had evidence been cited to prove it; the Judicial Committee, therefore, dismissed the appeal, but, for certain reasons given, they declared that the Plaintiff, Anga Moottoo Natchiar, might bring a fresh action for the estate, if she did so within three years. She• accordingly instituted the original suit, No. 2 of 1845, when the point of division or non- division, to which the Judicial Committee of the Privy Council had restricted further investigation, was tried, and the late Judge, Mr. Baynes, on a full and careful consideration of all the evidence, oral and documentary, decreed that division had not been proved: on the contrary, he conceived that the Defendant had, as clearly as the circumstances would admit of, shown that the Brothers were undivided, and he, therefore, dismissed the suit, as might have been expected. The Plaintiff appealed (No. 7 of 1849), but before the case was determined, she died; on which several parties petitioned to be allowed to carry on the appeal. Their petitions were first rejected, but the Court, apparently considering that justice required [*573] that the lower Court's award should not become immediately final, gave permission to the Petitioners (the Plaintiffs) to bring regular actions for recovery of the estate, provided they did so before the 30th of April, 1851. Instead of taking advantage of the Court's period of grace allowed them, the Plaintiffs petitioned the Court for review of their proceedings, the result of which was, that the Court overruled their former proceedings, and adjudged that the Plaintiff's petitions could be admitted to carry on the appeal, No. 7 of 1849. Subsequently, on a petition from the Defendant, the Sudder Court again took up the case, and finally revoked their proceeding of the 1st of May, confirming the principle laid down in those of the 21st of October, 1850, namely, that the Plaintiffs could not be allowed to carry on the, appeal, which, having abated on the death of the Appellant, the Sudder Court struck off their file, referring the Plaintiffs to the regular Court of original jurisdiction as those in which they should prefer, in the first' instance, any claims they might have to the estate. It will be observed that the period originally allowed them for bringing an action had then expired, and no second period of grace was given. Upwards of four years after this final Order of the Sudder had been passed, the Plaintiff in No. 10 of 1856 brings the present action, and a year later the original suit, No. 4 of 1857, is likewise filed. The original suit, No. 2 of 1845, was specially' brought to determine the status of the late Zemindar, and for no other purpose; the evidence was restricted to that point, and, consequently, if ever there was a judgment in rem, the decree in that suit, No. 2 of 1845, is one: in that decision it was dearly [*574] determined that the late Zemindar and his brother, were undivided. This judgment the Court is not competent now to question, still less to overrule; as a judgment in rem, it is conclusive against all the world, and no evidence can be admitted against it, unless it can be shown it was collusively or fraudulently given (Norton's 'Law of Evidence,' 470; Taylor, 'On Evidence,' Vol. II. 1489). Taylor, in the section quoted, says, 'This rule appears to rest partly, if not principally, upon the broad ground of public policy, it being essential to the peace of society that the social relations of every member of the community should not be left doubtful, but that, after having been clearly defined by one solemn adjudication, they should conclusively be set at rest.' And in the following section, 1490, it is further stated, that 'the decision cannot be impeached in the same or another Court, by showing that the facts on which it immediately rests are false.' The Court is not aware on what grounds permission was granted by the Sudder Adawiut to the Plaintiffs to bring the suits; the avowed object of which was to impeach this judgment in rem; but the period of grace passed without any suit being brought, and no further period was allowed. Possibly the Sudder Court, in reconsidering the matter, discovered that they were not competent to grant it; or the omission may have been an oversight. As, however, on the former occasion, the Court gave only eighteen months, it is to be presumed further grace, if it had been given, would not have exceeded a like period. Be this, however, as it may, in the absence of any precedent warranting such impeachment of a judg- ment in rem, and being of opinion 'that nothing can [*575] be more inconvenient or dangerous than a conflict of decisions in different Courts; and that if judgments in rem are not regarded as binding upon all Courts alike the most startling anomalies may occur' (Taylor 'On Evidence,' 1493), this Court is unable to accept the pleadings of the Plaintiffs on the status of the late Zemindar, save as an undivided brother. This status being thus determined, it only remains to see if the Plaintiffs have by law any claim to the estate. The Plaintiff, in original suit, No. 10 of 1856, admits she has none, save on the ground that it was self-acquired, and pleads the law as laid down in Vol. II of Macnaghten's 'Hindu Law,' pp. 33, 152, 153, and 155, as establishing her right. A reference to which by the Plaintiff's Vakeel would have shown him that the law therein propounded has reference solely to 'partition of property,' not 'succession,' and that it is clearly laid down in the preceding para. in p. 33, that, after the death of the widow, the property, becomes 'vested in the heirs of her husband,' but here she is, not a widow, but a daughter; the law,, therefore, which treats of widows is of no avail to her, but rather the contrary. The Pundits of the Madras and Bengal Sudder Courts are unanimous that the estate of the late Zemindar would descend to his widow only if he was of a divided family. Under the above circumstances, this Court is of opinion, that the Plaintiff in the original suit, No. 10 of 1856, has no claim in law to the estate sued for, and, therefore, directs that the suit be struck off the file without going into the other objections raised by the Defendant in his answer, the Plaintiff paying all costs. The Court's reasons for refusing to allow the Plaintiff, in suit, No. 10 of 1856, to plead that the brothers [*576] were divided, are equally applicable to the case of the Plaintiff in the suit, No. 4 of 1857. She bases her claim to the estate on the law propounded in the Futwahs of the Pundits filed in this and the suits referred to above; these, however, all refer to widows, and not daughters, and declare widows only entitled to succeed to their husband's ancestral and self-acquired estate when he is one of a divided family. The Court, therefore, is of opinion, that she also has failed to show that she has any claim at law to the estate sued for (Vide Strange's "Manual," pars. 346, 337, 339, 340, and 342); and, without going into the other objections raised in the answer to her right to sue, resolves to strike off her suit likewise from the file, she paying all costs. The Court, in continuance, would observe, that though it has taken the late Judge's decision in suit, No. 2 of 1845, as a judgment in rem, and, therefore, not to be impeached, yet that, after a careful study of the whole case (which has occupied it almost incessantly for a period of six weeks), it fully concurs with the late Judge in all he has urged in that decree and the judgment awarded by him. The Judicial Committee of the Privy Council, in their judgment (a), distinctly declare 'it exceedingly desirable that it should be known (not by the parties to the suit alone, but) to all those who are interested in this property, that the question of fact as to division or no division appears to be the only point on which the main question of title to the property will ultimately depend.' By thus declaring, this Court understands that the question of status being about to be [*577] decided, all interested were then invited to come forward to prove their assertions to division or non-division, as the decision given would be final. There cannot be a doubt that the Plaintiffs in the above suits were thoroughly acquainted with the decree of the Judicial Committee of the Privy Council; and it was for their interest to have assisted Anga Moottoo Natchiar to prove division, and see that all the evidence procurable was then advanced, and that the decision passed on the merits by the Civil Court (unless such decision is ruled to be only equivalent to an adjudication of settlement by order of Justice) is conclusive against all the world as regards the status of the late Zemindar; but allowing that the decree in the suit, No. 2 of 1845, was not final when it was passed, because appealed from, it appears to this Court that it is undoubtedly so now, inasmuch as it cannot be affected by any other suit, and there are no parties competent now to question it in appeal. It is laid down in the Sudder Adawlut decrees, No. 58 of 1854, No. 66 of 1855, No. 10 of 1852, No. '5 of i857, and Sudder Adawlut decrees, No. 86 of 1854, par. 19, that non-division is to be presumed until division is proved; non-division was the alleged state of the family when the suit was brought; non-division was the decision passed after a prolonged and patient investigation in the suit, No. 2 of 1845. and non-division was the status when the Plaintiff (Appellant) died. Such being the case, how can the Plaintiffs' claims, which are based and only sustainable on the ground that division had taken place, be admitted? If they can be, where is the limit, and what becomes of the rule, that judgments in rem are conclusive against all the world?" [*578] The Appellant appealed to the Sudder Court at Madras against this decree, praying that the suit might be remanded for adjudication on the merits.

 

On the 5th of November, 1859, the Sudder Court, by its decree, affirmed the decree of the Civil Judge of Madura of the 25th of August, 1859, on the ground that the question of division had been finally set at rest by the decree in the suit, No. 2 of 1845; that although that decree had been appealed from by the then Plaintiff, Auga Moottoo Natchiar, on her death without heirs the appeal had dropped; and that the appeal could not be opened, because the title of the Appellant had not at the time of that decree come into existence.

 

This was the second decretal Order appealed from to the Privy Council.

 

The Appellant petitioned the Sudder Court for leave to appeal to Her Majesty in Council against the last-mentioned Order, which that Court on the 3rd of March, 1860, refused, on the ground, that the decree of the Civil Judge of the 25th of August, 1859, was final under sec. 10, Reg. II. of 1802, and cl. 2 & 10, sec. 5 of Reg. XV. of 1816.

 

This was the third decretal Order appealed from.

 

Leave was afterwards granted by their Lordships, upon special petition to Her Majesty in Council to the Appellant to appeal from the decree of the Civil Court of Madura, dated the 27th of December, 1847, which, with the decrees of the Sudder Court of the 19th of April, 1852, the 5th of November, 1859, and the 3rd of March, 1860, and the decree of the Civil Court of Madura, dated the 25th of August. 1859, were those now appealed from.

 

The Appellant's two sisters, Bootaka Natchiar and [*579] Kota Natchiar having died, the Appellant succeeded to their rights, and all the other legal heirs in remainder after the death of Anga Moottoo Natchiar, withdrew their claims, except Sowmea Natchiar, who, however, died pending the appeal in England.

 

The Solicitor-General (Sir R. Palmer) and Mr. W. W. Mackeson, for the Appellant.

 

Our first proposition is, that the Zemindary in question, which constitutes a Raj, or principality, and impartible, was the separate and self-acquired estate of the Appellant's father, Gowery Vallabha Taver, and, secondly, that the family property had been divided in his lifetime. He and his eldest brother, Oga Taver, were, we contend, by the Hindoo law divided brothers, and the real point now in issue lies between the Appellant, as representing one line of heirs, the lineal female descendants of Gowery Vallabha Taver on the one hand, and the Respondent, the lineal descendant of his elder brother, Oya Taver,  on the other, and is narrowed to the validity of the decree of the Civil Court of Madura of the 27th of December, 1847, which decree, we submit, was manifestly erroneous. If the sole question to be tried in that suit was division, or no division; the evidence was all one way, and in favour of the Appellant's father and his elder brother, Oya Taver, being divided brothers. The fact of the division was established by the deeds of division, and the actual division in the year 1792 was fully proved by the witnesses in the suit, No. 2 of 1845, as well as by other witnesses incidentally in the suit, No. 4 of 1832. The division was also proved by the fact of the residence of the Appellant's father with the Ranee at Shivagunga, and his living separate from his [*580] divided brother at Padamattoor, previous to and until his installation as the Zemindar under the grant from the Government. The adoption of the Appellant's father by the Ranee, which, whether regular or not, was inconsistent with the Respondent's contention of his continuance as part of an undivided family. Then there is the further fact of his installation as Zemindar, and his living alone at Shivagunga, from the year 1801 until his death in the year 1829, separate from his brother and his family, who resided at Padamattoor. These are all circumstances inconsistent with the supposition that he was a member of an undivided family. Again, the leases granted by him as Zemindar to his brother and nephews, and the payment by them of kist, are all acts which by the Hindoo law are considered the strongest evidence of division. So again, by the Razinamah made in the suit, No. 4 of 1823, after a claim to the division of the Zemindary as co-heirs, in which the nephew, Moottoo Vadooa, and his brothers, admitted that they had no such right. Sepa- ration of interest', or division, is a sole question of fact, which the evidence here fully establishes. In W. H. Macnaghten 's "Hindu Law," Vol. I. p. 54, he says, the criterion of division seems to consist of members of the family entering into distinct contracts, and other similar acts, which tend to show that they have no dependence on or connection with each other. Coleb. Dig. Vol. III. pp. 415; Strange's "Hindu Law," Vol. I. pp. 225-7 [2nd Edit.], ib. Vol. II. p. 397, are authorities which establish the same proposition. A partition is presumed if they have sepa- rate possession of property. Than Sing v. Mussumaut Jeettoo (a). The only evidence in support of [*581]

 

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(a) 2 Ben. Sud. Dew. Rep., 324. [*581]

 

----------

 

the theory of the family being an undivided family is, that some of the religious ceremonies were jointly performed by both brothers. But such circumstance, even if proved, is held by the Hindoo law to be, but slight evidence in favour of the family being undivided, the religious ceremonies being constantly performed by divided brothers. Strange's "Manual of Hindoo Law," sec. 296 [edit. 18631. But we take a higher ground; we contend that even if part of the ancestral estate was at one time common property, yet that the Zemindary was self-acquired by the Appellant's father. The grant by the East India Company to Gowery Vallabha Taver was an act of sovereignty, the Zemindary having escheated for want of lineal heirs. Being by Swinud the grantee takes as purchaser, and the Zemindary must, therefore, be considered as self-acquired property, as in the case of confiscation. The East India Company v. Syed Ally (a), Ellavambadoo Mootiah Moodeliar v. Ellavambadoo Nineapah Moodeliar (b), Keonwur Bodh Singh v. Seonath Singh (c), Mahipat Singh v. The Collector of Benares (d). Again, it is an established principle of Hindoo law that property acquired without using the patrimony by one brother living in partnership belongs to him exclusively. W. H. Macnagliten's "Hindu Law," Vol. II. pp. 33-152-3-5. It belongs at his death to the acquirer's individual heir. Strange's "Manual of Hindoo Law," sec. 238.

 

This brings us to the first point, who by the Hindoo law prevailing at Madras is to succeed to th4 Zemindary on Gowery Vallabha Taver's death? I held in severalty, after his death it undoubtedly goes to his widow, who has, however, no right [*582]

 

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(a) 7 Moore's Ind. App. Cases, 578. (b) 2 Strange's Mad. Cases, 333. (c) 2 Ben. Sud. Dew. Rep. 92. (d) 5 Ben. Sud. Dew. Rep., 32. [*582]

 

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to dispose of it. W. H. Macnaghten's "Hindu Law," Vol. I. p. 19, ib. Vol. II. p. 33; Strange's "Hindu Law," Vol. I. pp. 121-137 [2nd edit.]; Mohun  Lal Khan v. Ranee Sirnomunnee (a), Keerut Singh v. Koolahul Singh (b), Nund Koowur v. Tootee Sing; note to Mussummaut Gyan. Koour v. Dookhurn. Singh (e), Musst Lalchee Koowur v. Sheopershad Sing (d). Cossinauth Bysack v. Hurrosoondery Dossee (e). The widow's right in Madras, to inherit her deceased husband's property, he dying without issue male, and the family divided, is fully discussed in the Mitacshara on Inheritance, eh. II., sec. 1, pi. 39; and in the Daya-Bhaga, ch. XI. sec. 1, pi. 3. 4. 14; Coleb. Dig. Vol. III. ch. CCCXCIX.; Strange's "Manual of Hindoo Law," secs. 315. 326 [edit. 1863]; Strange's "Hindu Law," Vol. I. pp. 134-5 [2nd edit.]; ib. Vol. II. p. 231, and the opinion of Sir William Jones, cited in Strange's "Hindu Law," Vol. II. p. 250. The Sandayar case (f) [*583]

 

----------

 

(a) 2 Ben. Sud. Dew. Rep., 32.

(b) 2 Moore's Ind. App. Cases, 331; S. C. 4 Ben. Sud. Dew. Rep., 9.

(c) 4 Ben. Sud. Dew. Rep., 330.

(d) 7 Ben. Sud. De. Rep., 22.

(e) Morton's Cal. Rep., 86.

(f) The decree of the Provincial Court for the Southern division, in the suit Coopasawmy Coolapa Nuik v. Yataamaul, dated the 13th of October, 1826, was filed in this case.

 

The question there raised was, who was enit1cd to succeed to the Zemindary of Sandayar. From the statements laid before the Pundits of the Sudder Court for their opinion, it appeared, that the Zemindary was an undivided estate, and it was the property of a common ancestor, A.; that it was inherited in regular succession by B., C., and D.; that D., having no issue, transferred it in his lifetime to his uncle, E., who was the next male heir entitled to inherit, in satisfaction of a claim for money preferred by the latter.

 

The Provincial Court's questions to the Pundits were, first, whether such transfer could he held to constitute the estate the separate acquisition of E.; and, secondly, if such transfer to the exclusion of co-heirs was illegal, whether the widows of F., who [*583] succeeded the father E., and died without issue, were entitled to the Zemindary, or whether the Plaintiff's title as grandson of the common ancestor was preferable,

 

The Pundits' opinion was, first, the gift by D. to E. of the Zemindary was good, and that it descended to his son F., and, secondly, that as F. died without issue the Zemindary devolved upon his widows.

 

(a) See Srimut Moottoo Vijaya Raghanadha Gowery Vallabha Perria Woodia Taver v. Rany Anga Moottoo Natchier, 3. Moore's Ind. App. Cases, p. 294.  [*584]

 

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is on all fours with the present case and strongly in our favour. And in a work called The Principles of Hindu and Mohammadan Law," by W. H. Macnaghten, edited by H. H. Wilson, it is laid down at pp. 21, 24, 5 [2nd edit., 1862], that according to the doctrine of the Smriti Chandrika, a widow, being the mother of daughters, takes her husband's property, both moveable and immoveable, when the family is divided, and in default of the widow the daughter inherits, ib. p. 22. Therefore, on the widow's death the Appellant, as daughter having male issue, succeeded to her father's estate. Strange's "Hindu Law," p. 137 [2nd edit.]; Mitacshara, ch. II. sec. 2, p. 341, ib. sec. 4, p. 346; Strange's "Manual of Hindoo Law," sec. 353 [2nd edit.]

 

Secondly, we are not bound by the decree of the Civil Court of Madura, in 1847, which does not preclude our right to ask this Court to determine the question of descent to the Zemindary, which, we con- tend, was self-acquired property by Gowery Vallabha Taver. It never could have been the intention of this Tribunal when the case came before it in the year 1844 (a), while observing, that the point of division was the substantial question, to shut out altogether the other material points at issue, [*584] raised in that case. We contend, therefore, that even if the brothers were undivided as to their ancestral property, the self-acqisition of one undivided brother dying without male issue, descended to the widow; and after her death to daughters, in preference to his brother and nephews. This rule of succession in Madras, is clear law, according to the authorities already cited.

 

Thirdly, the opinion of Pundits taken in the suits, as to the right of succession, cannot be relied on. The opinions which appear to have governed the Court below proceed on the assumption that the Text Books they cite apply to the case they were called to report upon, but the opinions unaccountably neglect to say if such authorities are applicable to the particular facts stated. The daughter's right to succeed not being mentioned in the texts cited, the Pundits seem to consider that the Appellant is not entitled. The cases of Myna Boyee v. Oottaram (a) and Abraham v. Abraham (b) are authorities showing the value to be attached to the Pundits' opinions, and the necessity of the appellate Court testing their accuracy, as well as that the questions put by the Court correctly state the point at issue.

 

Fourthly, as to the effect of the Razinamah executed by the widows in 1830, being binding on them, we submit, that a native woman can never be deemed sufficiently sui juris to be bound by her personal acts. Error and ignorance of their rights as widows rendered the agreement invalid. Narsummal v. Lutchmana Naic (e), Chellummal v. Garrow (d), Rajunder Narain Rae v. Bijai Govind Sing (e). [*585]

 

----------

 

(a) 8 Moore's Ind. App. Cases, 400.

(b) Ante, p. 195.

(c) 2 Strange's Mad. Cases, 16,

(d) lb., 159.

(e) 2 Moore's Ind. App. Cases, 181. [*585]

 

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Lastly, we insist, that the refusal of the Sudder Court to allow the Appellant to revive the appeal from the decree of the Civil Court of Madura of the 27th of December, 1847, was arbitrary and contrary to equity. Notwithstanding the proceedings by her in the suit, No. 10 of 1856, the Appellant was entitled to appeal from that decree. She, as daughter, having male issue, was heir to her father's estate, and like a remainder-man in England the proper party to revive the suit. Lloyd v. Johnes (a), Osborne v. Usher (b) Macqueen's "Prac. of the House of Lords," pp.. 242- 250. It must not be forgotten that her title only accrued on the widow, Anga Moottoo Natchiar's death, Roopchund Tilukchund v. Phoolchund Dhrurmchund (c), Loll Munnee Koonwaree v. Rajah Nemyeneram (d). The interest of the daughter in the estate of her deceased father is similar to that of a widow, Hurrydoss Dutt v. Sreemutty Uppoornah Dossee (e) ; but even if it should be held that she was not entitled to appeal from the decree- of the 27th of December, 1847, she certai.nly was not bound by it, The Zemindar of Ramnad v. The Zemindar of Yettiapooram (f), and in that view that decree could not be pleaded as res judicata, or, held to be a bar to her original suit, No. 10 of 1856, which was instituted in due time after the death of Anga Moottoo Natchiar.

 

Sir Hugh Cairns, Q.C., Mr. Hobhouse, Q.C., and

 

Mr. C. P. Phillips, for the Respondent.

 

First, we insist, that Oya Taver and Gowery Vallabha Taver were undivided brothers, and that from Gowery, [*586]

 

----------

 

(a) 9 Ves., 57.

(b) 6 Bro. P. C. Cases, 20.

(c) 2 Borr. Born. Rep., 616.

(d) 6 Ben. Sud. Dew. Rep., 255-7.

(e) G Moore's Ind. App. Cases, 433.

(f) 7 Moore's lad. App. Cases, 454-5.  [*586]

 

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Vallabha Taver the Zemindary has come by lawful descent to the Respondent, his nephew. The testamentary disposition. in his favour by the Appellant's father is not material to our title. We deny the alleged fact of the self-acquisition of the Zemindary by Gowery Valtabha Taver. It is true that there may be self-acquisition by a member of an undivided family, but the Hindoo law presumes such acquisition for the joint benefit of himself and his co-heirs. Strange's "Hindu Law," Vol. I., pp. 199-225, and the onus lies on a member of a Joint family claiming exclusive right to prove that it was separately acquired, Dhurrn Pas Pandley v. Mussnmat Shama Soondri Dibiah, (a), Gour Ghunder Rai v. Hurish Cliiwnder Rai (b), Nara- gunty Lutchmedavmah v. Vengama Naidoo (e),. W. H. Macnaghten's "Hindu Law," Vol. I., p. 54, and such presumption of joint partnership must be rebutted by clear evience of a division of the joint family. What is considered as evidence of division is fully treated by the text writers. Strange's "Hindu Law,' Vol. L, pp. 225-7 [2nd edit.]; ib., Vol. U., p. 333. Mitacshara, ch. II., sec. 12, p1. 3 and 4; and the cases collected in Morley's Dig., Vol. I. p. 483. Here the division is alleged to have taken place in the year 1792, but the evidence only proves separate residence after the year 1804. The different stations and duties and the health of the elder brother explain their separation, and the distance between their residences was as little as was compatible with those causes. The fact of the impartibility of the Zemindary and Polyaput of Padamattoor, coupled with the fact of the infirmity of Oya Taver, satisfactorily account for their separate residences. It has been decided that a [*587]

 

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(a) 3 Moore's Ind. App. Cases, 229.

(b) 4 Ben. Sud. Dew. Rep., 162.

(c) Ante, p. 66. [*587]

 

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grant to A., because he is the descendant of B., does not create a self-acquisition in A. Strange's "Hindu Law," Vol. I., p. 216 [2nd edit.]. Here the lineage o Gowery Vallabha Taver to the common ancestor, Shasavarna, was the cause of the grant by Government of the Zemindary to him. Oya Taver's personal incapacity alone prevented his installation as Zemindar. The deed of settlement did not limit the succession to the heirs of Gowery Vallabha Taver, or do more than confirm the previous grant by Government to him. Now, self-acquisition cannot be the property of one divided in family. It is never mentioned in the text books, except as to property of an undivided member, and as part of the common stock. "Hindu Law," Vol. I., pp. 120, 213, 215 [2nd edit.]. The Zemindary, it is admitted, is a Raj and impartible, and held by a single person; if it had been otherwise, the co-heirs would have shared in the Zemindary. Strange's "Hindu Law," Vol. I., p. 218 [2nd edit.]. And they mut have been parties to any alienation of it. Strange's "Hindu Law," Vol. II., pp. 439, 441, 450 [2nd edit.]. . It ertainly was not divisible from them, Strange's "Hindu Law," Vol. I., p. 260 [2nd edit.], where it is laid down that the issue of self-acquired property inherits as far as great-grandson. Ib., pp. 209, 210. Failing male issue, it goes to his undivided brothers and their issue. Strange's "Manual of Hindu Law," sec. 351, p. 84 [2nd edit.]. If the descent of self-acquired property differs from descent of the pro- perty of an undivided man, the Appellant should prove that to be the law. The silence of the Books and authorities on any such difference is strongly in the Respondent's favour. The Pundits in the case submitted to them in 1837 have laid it down that there is no such difference. The Sandayar [*588] case (a), relied upon by the Appellant to show the descent to self-acquired property, does not apply, as that case related to a divided family and ancestral estate. Transactions 'between co-parceners, in order to raise a rebuttal of the presumption of non-division, must be in relation to the property enjoyable by them in common. Strange's "Hindu Law," Vol. I., pp. 227, 8, 9, 230 [2nd edit.]. Families living together, and carrying on their transactions in common, constitute co-parcenary to which survivorship attaches, lb., Vol. I., p. 120. Living separately does not per se constitute division.

 

The next point is the title of Anga Moottoo Natchiar as a Hindoo widow to succeed. Women are generally incompetent to inherit. It could only be to property of a man divided in family. Strange's "Hindu Law," Vol. I., p. 134; Mitacshara, ch. II., sec. I., pi. 39. A Hindoo widow has only the right of enjoyment in her deceased husband 's property. It is laid down that with respect to property derived by inheritance from her husband, a widow is little more than tenant for life, and trustee for the ulterior heirs. Strange's "Manual of Hindu Law," sec. 159, p. 38 [2nd edit.]. A Hindoo widow must, in a suit by her for her late husband's realty, wherein she claims under his character as a divided member of a Hindoo family, re-present the whole series of his heirs, and a decree in that suit against her negativing such division is res j'u4icata, and must bind them, because a contrary conclusion would, so long as the descent passed through females, invoke the possibility of endless litigation of such fact of division.

 

Next, we contend, that the death of Anga Moottoo Natchiar in 1850, operated as an abatement of the suit, subject to revivor by the next of kin of Gowery [*589]

 

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(a) Ante, p. 578. [*589]

 

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Vallabha Taver, and we insist, that this Tribunal cannot now entertain an appeal from the decree of the civil Judge of Madura made in 1847, or enter into any question of division, or self-acquisition. First, as to the question of division. The suits of 1845, and 1849, were wholly abated. The Appellant was not a party thereto, and her claim to immediate heirship to. her father on the death of Anga Moottoo Natchiar had never been established, and has always been denied by the Respondents; secondly, as to the ques- tion of self-acquisition, that fact was clearly not in issue in the suit, No. 2, of 1845, nor dealt with by the decree of 1847. Further, with respect to the decree of the Sudder Court refusing the Appellant to revive the appeal, we submit it was perfectly regular, as the Sudder Court could not decide the question of heirship. That was a question for the Provincial Court, and thither the Appellant should have, in the first instance, gone. The Appellant's proper course was pointed out to her in, the year 1850. The suit that the Appellant ought to have brought, and which it as 'plain the Sudder Court intended her to bring, was one in the nature of a Bill of revivor, or a Bill of supplement, limited to the object of obtaining from the Provincial Court a declaration that she, as the daughter of Gowery Vallabha Taver, had established her right to stand in the place of Aga Moottoo Natchiar, but she perversely disregarded it, and filed the suit, No. 10 of 1856, to establish her right and to which suit she did not make the other claimant's parties Defendants. In Giffard v. Hort (a), it was held that a decree made in a suit, with- out making parties whose rights were affected thereby, [*590]

 

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(a) 1 Sch. & LeI., 386. [*590]

 

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was fraudulent and void as against those parties. Here she attempted to deceive the Provincial Court, by alleging an Order from the Sudder Court, directing H the suit, and by concealing her previous claim as third daughter, and the agreement with her sisters, and thereby only raised the issue of division, and did not properly raise the issue of heirship.

 

Having previously disregarded her proper course pointed out in the year 1850, and twelve years having elapsed since that date, the Respondent ought not to be restrained from setting up the Mad. Reg. of Limitations II, of 1802, sec. 18, cl. 4, in bar to any proceedings the Appellant might hereafter take to revive the appeal from the decree of 1847. She was barred by laches and lapse of time from maintaining any original proceeding for the recovery of the Zemindary.

 

As to the appeal from the decree of 1859, we submit that that decree was right, because the decree of 1847, on the fact of division, could not in fact be appealed by the heirs of Gowery Vallabha Taver claiming after Anga Moottoo Natchiar, and as to any claim under the alleged self-acquisition of the Zemindary, that was disposed of in the suit of 1833, and by this Tribunal in 1844, or if not, it was raised in suit of 1845.

 

Lastly, we insist, that the Appellant not having taken the proper proceedings, is not entitled to revive or continue the litigation commenced by Anga Moottoo Natchiar. Assuming, however, that the decree of the Zillah Court in December, 1847, bound the party succeeding at the death of the widow, Anga Moottoo Natchiar, the only remedy the Appellant, claiming as a remainder-man, now has, is for this Court to remit the case to the Sudder Court to determine the ori[*591]ginal appeal against the decree of the Civil Court of Madura. This Tribunal, as a Court of final appeal, will not adjudicate upon that point until a decree has been made by the Court below, which alone can give it jurisdiction.

 

The Solicitor-Genera in Reply

 

Admitting that a Hindoo widow has only a right of enjoyment in her husband's property, Strange's "Hindu Law," Vol. I. p. 124, ib. Vol. II. pp. 251-3 [2nd edit.], Daya-bhaga, ch. XI. sec. 1, pl 56, and that the widow's litigation was ill conducted, yet her husband's heirs, who succeed on her death, are not bound by her miscarriage. A remainder-man may rectify error, or supply omissions, Lloyd v. Jones (a), where the point is carefully considered by Lord Eldon. Here the Appellant, as daughter, was the heir of her de- ceased father, Coleb. Dig. Vol. III. pp. 186, 489, 491, 498, Daya-bhaga, ch. XI. sec. -2, pi. 1, the Sandayar case (b), and had a right to bring a new suit, and raise the proper question relating to the succession of the Zemindary, namely, the separate acquisition of the Zemindary. by her father, which fact was established in evidence, and, consequently by the Hindoo law, even if they were an undivided family, neither his brother nor his nephew, could succeed to the Zemindary, Macnaghten's "Hindu Law," Vol. II. p. 156.

 

Judgment was reserved, and now delivered by

 

The Right Hon. the Lord Justice Turner.

 

The subject of this appeal, and of the long litigation which has preceded it, is the Zemindary of Shiva[*592]

 

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(a) 9 Vas., 60.

(b) Ante, p. 578. [*592]

 

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guuga, in the District of Madura and Presidency of Madras.

 

This Zemindary is said to have been created in the year 1730, by the then Nabob of the Carnatic, in favour of one Shasavarna, on the extinction of whose lineal descendants in 1801, it was treated as an escheat by the East India Company, which had then become possessed of the sovereign rights of the Nabob of the Carnatic, and was granted by the Madras Govern- ment to a person whom we shall distinguish by one of his many, names, as Gowery Vallabha Taver. He had an elder brother named Oya Taver, who pre- deceased him, dying in 1815. The Zemindar himself died on the 19th of July, 1829.

 

He had had seven wives, of whom three only survived him. Of the deceased wives, the first had a daughter (since dead), who left a son named Vadooga Taver; the second had a daughter named Bootaka Natchiar; the third had two daughters, Kota Natchiar and Katima Natchiar, the present Appellant; and the fourth was childless. The three surviving, widows were Anga Moottoo Natchiar, Purvata Natchiar, and Moottoo Verey Natchiar. Of these Purvata Natchiar was enceinte at the time of her husband's death, and afterwards gave birth to a daughter named Sowinia Natchiar. The two others were childless. Oya Taver, the brother, left three sons, of whom the eldest was named Moottoo Vadooga.

 

The Zaminary is admitted to be in the nature of a Principality--impartible, and capable of enjoyment by only one member of the family at a time. But whatever suggestions of a special custom of descent may heretofore have been made (and there are traces of such in the proceedings), the rule of succession to [*593] it is now admitted to be that of the general Hindoo law prevalent in that part of India, with such qualifications only as flow from the impartible character of the subject .

 

Hence if the Zemindar, at the time of his death, and his nephews were members of an undivided Hindoo family, and the Zemindary, though impartible, was part of the common family property, one of the nephews was entitled to succeed to it on the death of his uncle. If, on the other hand, the Zemindar, at the time of his death, was separate in estate from his brother's family, the Zemindary ought to have passed to one of his widows, and failing his widows to a daughter, or descendant of a daughter, preferably to nephews; following the course of succession which the law prescribes for separate estate. These propositions are incontestable; but Gowery Vallablia Taver's widows and daughters have advanced a third, which is one of the principal matters in question in this appeal. It is that, even if the late Zernindar continued to be generally undivided in estate with his brother's family, this Zemindary was his self-acquired and separate property, and as such was descendilile, like separate estate, to his widows and daughters and their issue preferably to his nephews, though the latter, as co-parceners, would be entitled to his share in the undivided property. Upon this view of the law the question whether the family were undivided or divided becomes immaterial. The material question of fact would be whether the Zemindary was, to be treated as self-acquired separate property, or as part of the common family stock.

 

Whichever may have been the proper rule of suc- cession, it is certain that, if not on the death of Gowery Vallabha Taver, at least on the failure of his [*594] male issue, being demonstrated by the birth of his posthumous daughter, his nephew, Moottoo Vadooga obtained possession of the Zemindary. He seems to have set up an instrument which in the proceedings is called a Will. On the Appellant's side this is treated as a forgery. The Respondent, denying the forgery, does not now treat the document as a testamentary disposition, or as material to his title; and it may, therefore, be dismissed from consideration. Moottoo Vadooga obtained possession with the concurrence of various members of the family, and of Government and its officers. He afterwards obtained from the then three surviving widows the Rainamah, or agreement. He continued in possession without litigation, if not without dispute, until his death, which took place on the 21st of July, 1831; and was then succeeded by his eldest son, Bodha Gooroo Sawmy Taver.

 

Soon after this event began the litigation concerning this property, which has now continued upwards of thirty years. Its history may be conveniently divided into three periods: the first beginning with the institution of suit, No. 4, of 1832, and ending with the Order of the Queen in Council in 1844; the second beginning from the date of that Order, and ending with the death of the widow, Anga Moottoo Natchiar, on the 23rd of June, 1850; and the third being that which covers the proceedings which have been had since Anga Moottoo Natchiar died.

 

The suit, No. 4 of 1832, was brought by Velli Natchiar, the daughter of Gowery Vallabha Taver by his first wife, on behalf of her infant son, Mootto Vadooga. It claimed the Zemindary for the infant by virtue of an Arze said to have been sent by the Collector to Gowery Vallabha Taver in 1822, according to which the succession would be to the son of a daughter in preference [*595] to his widows, and a fortiori in preference to his brother's descendants. The defence to this suit insisted that the Zemindary had been granted to Gowery Vallabha Taver solely in consequence of his relation- ship to the former Zemindars, and was, therefore, to be treated as part of the undivided family estate, and, as such, descendible to the eldest of the male co-parceners in preference to any descendant in the female line from Gowery Vallabha Taver. The reply did not raise any distinct issue as to the character of the family, whether divided or undivided, but insisted that the Zemindary was to be regarded as the self- acquired and separate property of Gowery Vallabha Taver, and ought to pass by virtue of the Arze to the Plaintiff.

 

In 1833, two other suits were instituted against the Zemindar in possession. Of these, that distinguished as No. 4 may be left out of, consideration, inasmuch as the Plaintiff in it rested his title on an alleged adoption by Gowery Vallabha Taver, of which he failed to give satisfactory proof. Such a title, if established, would of course have been paramount to the claims of either the nephews or the widows.

 

Suit 3, of 1833 is, however, the most important, with reference to this appeal, of the three suits now under consideration. It was brought by Anga Moottoo Natchiar, the fifth wife, and the elder of the three widows of Gowery Vallabha Taver. he set up an adoption, or quasi adoption, of Gowery Vallabha Taver, by the widow of the last Zemindar of the elder line, and treated this as the consideration, or a principal consideration for the grant of the Zemindary made to him by the East India Company, and she insisted that Moottoo Vadooga Taver, on her husband's death, got possession of the Zemindary, of which she was [*596] the legal heiress, by means of the forged Will. The defence to this suit, so far as it related to the title of the Zemindar in possession, was substantially the same as that made to the suit, No. 4 of 1832; but it also denied the alleged forgery of the Will, and insisted on the Razenamah executed by Anga Moottoo Natchiar and the other widows to Moottoo Vadooga Taver. In her reply, Anga Moottoo Natchiar did not raise any distinct issue as to the division or non-division of the family. She submitted, as an issue of fact, that the Zemindary had been acquired by the sole exertions and merits of her husband; and as an issue of law, that what is acquired by a man, without employment of his patrimony, shall not be inherited by his brothers and co-heirs, but if he dies without male issue shall descend to his widows, his daughters, and parents, before going to his brothers or remoter collaterals.

 

These three suits were all dismissed by the Provincial Court. We have not the decree or decrees of dismissal, but it seems probable that they were heard and disposed of together. It also appears that, although there was not in any of them a distinct issue, whether Gowery Vallabha Taver and his nephews were or were not an undivided Hindoo family, some evidence was given in the suit, No. 4 of 1832, to show that he and his brother were separate in estate. There was an appeal in each of the three suits, and these were heard together, and disposed of by the decree of the Sudder Court. That decree dismissed No. 4 of 1833, on the ground that the Plaintiff had failed to prove his alleged adoption by Gowery Vallabha Taver, and it dismissed No. 4 of 1832 on the ground that the succession to the Zemindary was governed by the general Hindoo law, and not by [*597] any particular or customary canon of descent; so that, if descendible as separate estate, it would go to the widows of Gowery Vallabha Taver in preference of a grandson by a daughter. In the suit, No. 3, of 1832, it was decided, first, that as a matter of fact the Zemindary was the self-acquired and separate property of Gowery Vallabha Taver: secondly, that according to the opinion of the Pundits whom it had consulted, the rule of succession to the Zernindary, though self-acquired, would depend on the fact whether the brothers had or had not divided their ancestral estate; that in the former ease it would belong to the widow, and in the latter to the nephew; thirdly, that upon the whole evidence the brothers must be taken to have divided their ancestral property; and lastly, that the Plaintiff, Anga Moottoo Natchiar, was entitled to recover the Zemindary, not having forfeited her rights by the execution of the Razenamah.

 

Against this decree the Zemindar then in possession appealed to Her Majesty in Council. The Order made on that appeal on the 19th of June, 1844, was that the decree of the Sudder Court should be reversed, with liberty to the Respondent, Anga Mootoo Taver, to bring a fresh suit, notwithstanding the decree of the Provincial Court, at any time within three years from the filing of that Order in the Sudder Dewanny Adawiut. The grounds on which their Lordships who recommended this Order proceeded were, as appears from the judgment delivered by Dr. Lushington, that the Sudder Court had miscarried in deciding the question of division, which was not one of the points reserved in the cause, nor was expressly raised upon the pleadings, but that the Respondent ought to be allowed to remedy the [*598] omission in a new suit. And their Lordships added, that though they could make no Order on the subject, it would be exceedingly desirable that it should be well known to all those who were interested in the property that the question of division or non-division appeared to be the only point on which the main question of title to the property would ultimately depend.

 

On the 20th of August, 1845, Anga Moottoo Natchiar commenced her second suit in forma pauperis. In the interim Bodha Gooroo Swamy Taver had died, and the Zemindary had passed to his brother, Gowery Vallabha Taver, the father of the Respondent, and he with a younger brother were the Defendants to the new suit. In her plaint the widow, after stating the pedigree of the family, some of the former proceedings, and the desire of Velu Natchiar, the widow of the last Zemindar of the elder line, to make Gowery Vallabha Taver, the first of 'that name whom we have mentioned', her successor, proceeds to allege, that with that object she had caused him and his elder brother, Oya Taver, to make a partition of their ancestral property as early as the year 1792. The Plaintiff then excilses her omission to plead this fact in the previous suit by saying that she had been advised it was only necessary for her to show that her husband had been adopted by Velu Naichiar, and that the Zemindary was his self- acquisition. She then proceeds to allege, that on the death of Velu Natchiar, he actually became Zemindar until he was dispossessed by the usurpers; on whose defeat and destruction by the East India Company, he was again put into possession under their grant. She also in this suit makes the alter- native case, that even if no partition of their ancestral [*599] property took place between Gowery Vallabha Taver and his brother Oya Taver, she, as the eldest widow, was entitled to the Zemindary, as a separate acquisition, in preference to that brother's descendants, and pleads the decision, in what is called the Sandayar case, to prove that such is the Hindoo law, and that the opinion given in the former case by the Pundits to the contrary was erroneous.

 

In. his answer, the first and principal Defendant recapitulated the several facts relied upon by Bodha Gooroo in the former suit as constituting his title. He insisted that by the decision of the Judicial Committee of the Privy Council the contest was narrowed to the issue whether the brothers were undivided in estate or not, and that the, Plaintiff should have rested her claim on that issue. He contended that there had been no partition. The points recorded in the suit are thud somewhat vaguely stated:--"The Plaintiff to prove, by means of documents and witnesses, that division took place in 1792. As' the defence is but a denial of this circumstance, the Defendant cannot be called upon to establish the negative side by direct proof. But the Defendant will have to prove the points mentioned in paragraphs 2 to 5 of the answer; and he is required to use, if possible, strong arguments against the points particularly spoken of by the Plaintiff."

 

A large body of evidence, is, in fact, given by each side on the question of division or non-division. The case was heard by the Civil Judge, Mr. Baynes, whose decree is dated the 27th of December, 1847. The effect of it was, that the only question really open between the parties was that of division or non- division; that the Plaintiff had failed to prove the partition between Gowery Vallabha Taver and his [*600] brother, Oya Taver; and that her suit must be dismissed with costs.

 

Against this decree, on the 6th of April, 1848, Anga Moottoo Natchiar appealed to the Sudder Court. The Defendant, Gowery Vallabha, then died, and his infant son, the present Respondent, came in, and on the 5th of November, 1849, filed an answer to the appeal. Before the appeal was heard, and on the 24th of June, 1850, Anga Moottoo Natchiar also died, and with her death ended the second stage of this long litigation.

 

On the death of Anga Moottoo Natchiar the Court seems to have issued a notice in the form ordinarily used on the abatement of an appeal by the death of an Appellant, calling upon the heirs of the deceased to come forward and prosecute the suit. This form of notice, it is obvious, was not strictly applicable to a case like the present, where, upon the death of a Hindoo widow, the right of action formerly vested in her devolves not upon her heirs, but upon the next heirs of her husband; and to this circumstance may be traced some of the confusion which is bservable in the subsequent proceedings. Such as it was, however, the notice brought into the field three sets of claimants. The first consisted of Bootaka Natchiar, the daughter of Gowery Vallabha Taver by his second wife, and Kota Natchiar and the present Appellant, his daughters by his third wife. They claimed as the rightful heirs of the Zemindary, if it passed as separate property, next in succession to the widow, Anga Moottoo Natchiar; but considering its impartible nature, they expressed their willingness that it should be enjoyed first by Bootaka Natchiar for her life, next by Kota Natchiar for her life, and lastly by the Appellant. They treated Sowmia Natchiar, the daughter by the [*601] sixth wife, as excluded from the succession by reason of her marriage with Bodha Gooroo, and of her being then a childless widow.

 

Sowmia Natchiar, however, came forward by a separate petition, claiming to be heiress both to Anga Moottoo Natchiar and the Zemindary, by virtue of an instrument alleged to have been executed by Anga Mootoo Natchiar in her lifetime.

 

A third claimant was Mootoo Vadooga, the Plaintiff in the dismissed suit of 1832. His contention was, that though the decree in that suit may have been right in preferring to his claim that of Anga Mottoo Natchiar, his title as grandson was nevertheless preferable to that of daughters, and that on the death of the widow he became entitled to the Zemindary.

 

Counter-petitions were filed on behalf of the Respondent, objecting to the revival of the appeal by any of these claimants; and it is observable that he then insisted that they ought to be compelled to bring fresh suits. for the trial of their alleged rights, in order to give him the means of alleging and proving certain special matters of defence against them, of which he would not have the benefit in the suit of Anga Mootoo Natchiar.

 

The Sudder Court, in dealing, with these claims to prosecute the appeal, has made three different and inconsistent orders.

 

By the first, dated 21st of October, 1850, it held that none of the claimants could prosecute the appeal, which it directed to be removed from the file, but left any of them at liberty to bring a new action to enforce their respective claims, provided it was commenced before the 30th of April, 1851.

 

They all petitioned for a review of this Order; counter-petitions were filed on behalf of the Re[*602]spondent; and the Court, by its Order of the 1st of May, 1851, notwithstanding an. adverse opinion given by its Pundits on the 7th of March preceding, reversed its former Order, and directed the appeal to be replaced on the file, and the several claimants to be made supplemental Appellants; resolving to hear the appeal, and, if it should be sustained, to determine the mode in which their rights as against each other and the Defendant should be tried.

 

On the 19th of April, 1852, the Court, apparently of its own mere motion on taking up the record of the appeal, reversed this Order of the 1st of May, 1851, and ruled that the several claimants could not be heard on the appeal, but might prosecute their respective rights in the Court of first instance, which Court was to be guided in the admission and hearing of their claims by the Regulations in force, and the appeal was again removed from the file.

 

Thereupon the Respondent shifted his ground, and by a petition dated the 30th of June, 1852, objected to the last Order and prayed for a review Of it. His contention then was, that the heirs next in succession to Anga Mootoo Natchiar, according to that course of succession, might have been admitted to carry on the appeal, and that it was a hardship on him to have to litigate his title with them in a new suit. The Court, however, by its proceeding of the 16th of September, 1852, adhered to its Order, giving at the same time a not very intelligible explanation of it.

 

Of the three daughters of Gowery Vallabha Taver who joined in the first of the above-mentioned applications to the Sudder Court, the Appellant alone brought a fresh suit. The plaint was not filed until the 5th of December, 1856, but there seem to have been various intermediate proceedings before both the Zillah and [*603] Sudder Courts. These are referred to in the. Appellant's petition of appeal, but are nowhere stated in detail. Her plaint stated, that her father and his brother, Oya Taver, were divided in estate prior to 1801, and were then living separately; that the Zemindary was granted exclusively to the former, and was, therefore, his self-acquisition, and enjoyed by him in exclusion of his brother.

 

The Appellant's title in succession to Anga Moottoo Natchiar is thus stated:--"The Zemindary, which is the self-acquisition of the Plaintiff's father after his division with Oya Taver, belongs on the death of his widow, Anga Mootoo Natchiar; to his second daughter, the Plaintiff, who has male and female issue: whilst his first daughter, Bootaka, has no issue, and the third daughter, Sowmia, is a widow." In the seventh, paragraph (though the point is not taken so distinctly as in the suit of Anga Mootoo Natchiar) she claims the Zemindary as her father's self-acquisition, irrespectively of the alleged partition with his brother, and the question of division.

 

The answer took a formal objection to the suit, namely, that it was brought against the guardian of the infant Zemindar, and not, as it ought to have been, against the infant jointly with his guardian: It also insisted on the Regulation of Limitation and the decree of the 27th of December, 1847, as bars to the Appellant's claim. It further impeached her title as the heir next in succession to Auga Mootoo Natchiar in that line of succession, alleging that there were descendants of Gowery Vallabha Taver through his elder widows, and it again pleaded many of the facts put in issue in the suit of 1845, as constituting the title of the infant Zemindar.

 

The estate being then in the custody of the [*604] Court of Wards, the Collector was made a Defendant, and put in a similar answer. Replies and rejoinders were filed; but without settling any issues or taking any evidence in the cause. The Zillah Judge, Mr. Cotton, on the 25th, of August, 1859, dismissed the suit, together with the suit, No. 4 of 1857, which had been instituted by Sowmia Natchiar, but with which we have no concern. His reasons for dismissing the Appellant's suit were:--first, that upon the question of division she was concluded by the decree of 1847, which he treated as a judgment in rem, made final by the removal of the appeal from the file; and, secondly, that it was clear upon the opinions of the Pundits, that the Zemindary, whether self- acquired or not, could not descend to the widow, nor, a fortiori, to a daughter, except in the event of the Zemindar having been of a divided family.

 

The Appellant appealed from this decision to the Sudder Court, praying that the suit might be remanded for adjudication on the merits Her appeal was dismissed by a decree, dated the 5th of November, 1859. The Sudder Court seems also to have considered that by the dropping of the appeal on Anga Mootoo Natchiar's death the decree of 1847 had become final, and, as such, was an effectual bar to the Appellant's claim. On the 3rd of March, 1860, the Sudder Court refused to give the Appellant leave to appeal to Her Majesty in Council; but special leave was afterwards given on the recommendation of this Committee.

 

The present appeal is against the decree of the Sudder Court of the 5th of November, 1859, and its Order of the 3rd of March, 1860, and the decree of the 25th of August, 1859. It is also against the Order of the Sudder Court of 1852, and the decree of the Civil Court of Madura of the 27th of December, [*605] 1847. If, therefore, the latter decree is in truth a bar to the Appellant's obtaining effectual relief in her original suit, the appeal seeks by reopening that decree to remove the bar.

 

And here, before going further, their Lordships deem it right to remark shortly upon the extra- ordinary, doctrine touching this decree which was propounded by the Zillah Judge when dismissing the suit of 1856; because if unnoticed here, as it seems to have been unnoticed by the Sudder Court, it may find acceptance with other unprofessional Judges, and embarrass the course of justice in India. Their Lordships would otherwise think it unnecessary to observe that a judgment is not a judgment n rem, because in a suit by A. for, the recovery of an estate from B. it has determined an issue raised concerning the status of a particular person or family. It is clear that this particular judgment was nothing but a judgment inter partes; and the only question which could properly arise concerning it in the suit of 1856 was to what extent, as such, it was binding on the Appellant.

 

Their Lordships also feel constrained 'to observe that the various proceedings which have taken place since Anga Mootoo Natchiar's death have signally failed to do justice between the parties, or to dispose of the matters in dispute between them by anything approaching to a regular course of trial and adjudication. When Anga Mootoo Natchiar died, the decree of 1847 was not a final decree. An appeal was pending against it. Either it was binding upon those who in the event of her title being a good one would succeed to the Zemindary, or it was not. Those persons were obviously not her heirs, but the next heirs of her husband according to the canon of Hindoo law, [*606] which defines the succession to separate estate. It ought not, their Lordships conceive, to have been a difficult matter to ascertain the persons answering to this description. If the decree were in its nature binding on them, they, when ascertained, ought to have been allowed to prosecute the appeal. If the decree were not binding upon them, it ought not to have been treated as an obstacle to the full trial and adjudication of their rights in an original suit. The Sudder Court, however, after making two other and inconsistent Orders, referred the parties to an original suit; and yet a suit of that nature when brought by the Appellant has been since disposed of against her summarily, and without taking evidence, on the ground that the main and essential issue in it was concluded by the decree of 1847. Therefore, she has fallen, so to speak, between two stools. She has had neither the benefit of the appeal against the decree of 1847, nor a fair trial of her right in a new suit.

 

It has been ingeniously argued here that for this result the Appellant is herself solely responsible; that the suit which she ought to have brought, and which the Sudder Court intended her to bring, was one in the nature of a Bill of revivor, or a Bill of revivor and supplement, limited to the object of obtaining from the Zillah Court a declaration that she had established her title to stand in the place of Anga Mootoo Natchiar, and carry on the former suit. Whether the procedure of the Courts of the East India Company admitted of such a suit (and no precedent of one has been produced). their Lordships are not prepared to say. But they have a very strong and clear opinion that such was not the nature of the suit which the Sudder Court had in its contemplation [*607] when it made its Order of 185. The omission to reserve the hearing of this appeal until the determination of the new suit; its removal from the file, which seems to be tantamount to its dismissal for want of prosecution, and has been so treated in these proceedings; the contention of the Respondent himelf in his counter-petitions filed in opposition to the first applications for leave to prosecute the appeal all point to the conclusion that the new and original suit intended was one in which the whole title of the claimants should be again pleaded and litigated.

 

The subsequent and obscure Order of the 16th of September, 1852, is hardly inconsistent with this, though it seem to contemplate that the decree of 1847 might prove an effectual bar to the suit which the Court itself had directed. Yet if there was ground for this apprehension, in what a position had the Sudder Court placed the claimants It had denied to them the power of prosecuting the appeal; it had thereby made final that which was not in its nature final; and having thus tied their hands, it sent them to wage a contest in a new suit in which, so bound, they could not but fail. If, therefore, the decree of 1847, when final, was binding on the claimants, the Sudder Court ought either to have dealt with the appeal on the merits, or it ought to have declared the claimants at liberty to bring and prosecute the new suit, notwithstanding that decree.

 

In either view of the case, therefore, there was a grave miscarriage of justice in the earliest Order of the Sudder Court which is appealed against, viz. that of the 19th of April, 1852.

 

It seems, however, to be necessary, in order to determine the mode in which this appeal ought to be disposed of, to consider the question whether the [*608] decree of 1847, if it had become final in Anga Mootoo Natchiar's lifetime, would have bound those claiming the Zemindary in succession to her. And their Lordships are of opinion that, unless it could be shown that there had not been a fair trial of the right in that suit-or, in other words, unless that decree could have been successfully impeached on some special ground, it would have been an effectual bar to any new suit in the Zillah Court by any person claiming in succession to Auga Mootoo Natchiar. For assuming her to be entitled to the Zemindary at all, the whole estate would for the time be vested in her, absolutely for some purposes, though, in some re- spects, for a qualified interest; and until her death it could not be ascertained who would be entitled to succeed. The same principle which has prevailed in the Courts of this country as to tenants in tail representing the inheritance, would seem to apply to the case of a Hindoo widow; and it is obvious that there would be the greatest possible incon- venience in holding that the succeeding heirs were not bound by a decree fairly and properly obtained against the widow.

 

But, then, assuming that the succeeding heirs would be so bound, it was strongly insisted on the part of the Respondent that this Committee can do no more than remit the cause, with directions to the Sudder Court to hear and determine the appeal against the decree of 1847; that it cannot itself deal with the merits of a decree of the Civil Court, until they have been determined by the appellate Court. Their Lordships, however, are not of that opinion. The appeal was ripe for hearing by the Sudder Court. Their Lordships have before them all the materials for a decision upon the merits, which have been fully [*609] argued before them. They conceive, therefore, that they are not bound to yield to this technical objection. On the contrary, they think that it is competent to them to advise Her Majesty to make the Order which the Sudder Court ought to have made in 1852, and that it is their duty to do so.

 

The substantial contest between the Appellant and the Respondent is, as it was between Anga Moottoo Natchiar and the Respondent's predecessors, whether the Zemindary ought to have descended in the male and collateral line; and the determination of this issue depends on the answers to be given to one or more of the following questions:

 

First. Were Gowery Vallabha Taver and his brother, Oya Taver, undivided in estate, or had a partition taken place between them.

 

Second. If they were undivided, was the Zemindary the self-acquired and separate property of Gowery Vallabha Taver? And if so--

 

Third. What is the course of succession according to the Hindoo law of the south of India of such an acquisition, where the family is in other respects an undivided family?

 

Upon the first question their Lordships are not prepared to disturb the finding of Mr. Baynes in the decree of 1847. There are undoubtedly strong reasons for concluding that Gowery Vallabha Taver and his brother, after the acquisition by the former of the Zemindary, lived very much as if they were separate. But this circumstance is not necessarily inconsistent with the theory of non-division, if, as was likely, the family and undivided property was very inconsiderable in comparison of the separately enjoyed Zemindary. And Anga Moottoo Natchiar, having admitted that the brothers had been joint in estate. and alleged a partition [*610] at a particular place and. time, took upon herself the burden of proving that partition; a burden from which it must be admitted she has not satisfactorily H relieved herself. Nor can their Lordships in considering this question be unmindful of the presumption which arises from the lateness of the period at which the allegation of division was first made; and from the silence of the parties in the suits of 1832 and 1833, as well as in the suit of 1823, which is mentioned in these proceedings, upon the subject of a partition which, if it had ever taken plac_, must have been in the knowledge of all the members of the family.

 

The second question their Lordships have no hesitation in answering in the affirmative. Every Court that has dealt with the question has treated the Zemi'ndary as the self-acquired property of Gowery Vallabha Taver. Their Lordships conceive that this is the necessary conclusion from the terms of the grant, and the circumstances in which it was made. The mere fact that the grantee selected by Government was a remote kinsman of the Zemindarj of the former line does not, their Lordships apprehend, bring this case within the rule cited from Strange's "Hindu Law" by Sir Hugh Cairns.

 

The third question is one of nicety and of some difficulty. The conclusion which the Courts in India have arrived at upon it, is founded upon the opinion of the Pundits, and upon authorities referred to by them. We shall presently examine those opinions and authorities; but before doing so, it will be well to consider more fully the law of inheritance as it prevails at Madras and throughout the southern parts of India, and the principles on which it rests and by which it is governed. The law which governs questions of inheritance in these parts of India is to [*611] be found in the Mitacshara, and in ch. II., sec. 1, of that work the right of widows to inherit in default of male issue is fully considered and discussed.

 

The Mitacshara purports to be a commentary upon the earlier institutes of Yajnyawalcya; and the section in question begins by citing a text from that work, which. affirms in general terms the right of the widow to inherit on the failure of male issue. But then the author of the Mitacshara refers to various authorities which are apparently in conflict with the doctrines of Yajnyawalcya, and, after reviewing those authorities, seeks to reconcile them by coming to the conclusion "that a wedded wife, being chaste, takes the whole estate of a man, who, being separated from his co-heirs, and not subsequently re-united with them, dies leaving no male issue." This text, it is true, taken by itself, does not carry the rights of widows to inherit beyond the cases in which their husbands have died in a state of separation from their co-heirs, and leaving no male issue; but it is to be observed that the text is propounded as a qualification of the larger and more general proposition in favour of widows; and, consequently, that in construing it, we have to consider what are the limits of the qualification, rather than what are the limits of the right. Now, the very terms of the text refer to eases in which the whole estate of the deceased has been his separate property, and, indeed, the whole chapter in which the text is contained, seems to deal only with cases in which the property in question has been either wholly the common property of a united family, or wholly the separate property of the deceased husband We find no trace in it of a case like that before us, in which the property in question may have been in [*612] part the common property of a united family, and in part the separate acquisition of the deceased; and it cannot, we think, be assumed that because widows take the whole estates of their husbands when they have been separated from, and not subsequently re- united with, their co-heirs, and have died leaving n(tm) male issue, they cannot, when their husbands have not been so separated, take any part of their estates, although it may have been their husband's separate acquisition. The text, therefore, does not seem to us to govern this case.

 

There being then no positive text governing the case before us, we must look to the principles of the law to guide us in determining it. It is to be observed, in the first place, that the general course of descent of separate property according to the Hindoo law is not disputed. It is admitted that, according to that law, such property descends to widows in default of male issue. It is upon the Respondent, therefore, to make out that the property here in question, which was separately acquired, does not descend according to the general course of the law. The way in which this is attempted to be done, is by showing a general state of co-parcenaryship as to the family property; but assuming this to have been proved, or to be presumable from there being no disproof of the normal state of co-parcenaryship, this proof, or absence of proof, cannot alter the case, unless it be also the law that there cannot be property belonging to a member of a united Hindoo family, which descends in a course different from that of the descent of a. share of the property held in union; but such a proposition is new, unsupported by authority, and at variance with principle. Thai two courses of descent may obtain [*613] on a part division of joint property, is apparent from a passage in W. H. Macnaghten's "Hindu Law," title "Partition," vol. I. p. 53, where it is said as follows: "According to the more correct opinion, where there is an undivided residue, it is not subject to the ordi- nary rules of partition of joint property; in other words, if at a general partition any part of the pro- perty was left joint, the widow of a deceased brother will not participate, notwithstanding the separation, but such undivided residue will go exclusively to the brother."

 

Again, it is not pretended that on the death of the acquirer. of separate property, the separately acquired property falls into the common stock, and passes like ancestral property. On the contrary, it is admitted that if the acquirer leaves male issue, it will descend as separate property io that issue down to the third generation. Although, therefore, where there is male issue, the family property and the separate property would not descend to different persons, they would descend in a different way, and. with different con- sequences; the sons taking their father's share in the ancestral property subject to all the rights of the co-parceners in that property, and his self-acquired pro- perty free from those rights. The course of succession. would not be the same for the family and the separate estate; and it is clear, therefore, that, according to the Hindoo law, there need not be unity of laeirship.

 

But to look more closely into the Hindoo law. When property belonging in common to a united Hindoo family has been divided, the divided shares go in the general course of descent of separate property. Why, it may well be asked, should not the [*614] same rule apply to property which from its first acquisition has always been separate We have seen from the passage already quoted from Macnaghten's "Hindu Law," that where a residue is left un- divided upon partition, what is divided goes as separate property; what is undivided follows the family property; that which remains as it was, devolves in the old line; that which is changed and becomes separate, devolves in the new line. In other words, the law of succession follows the nature of the property and of the interest in it.

 

Again, there are principles on which the rule of succession according to the Hindoo law appears to depend: the first is that which determines the right to offer the funeral oblation, and the degree in which the person making the offering is supposed to minister to the spiritual benefit of the deceased; the other is an assumed right of survivorship. Most of the authorities rest the uncontested right of widows to inherit the estates of their husbands, dying separated from their kindred, on the first of these principles (1 Strange's "Hindu Law," p. 135). But some ancient authorities also invoke the other principle. Vrihaspati (3 Coleb. Dig. 458, tit. cccxcix; see also Sir William Jones' paper cited in 2 Strange's "Hindu Law," p. 250) says: "Of him whose wife is not deceased half the body survives; how should another take the property while half the body of the owner lives?" Now, if the first of these principles were the only one involved, it would not be easy to see why the widow's right of inheritance should not extend to her husband's share in an undivided estate. For it is upon this principle that she is preferred to his divided brothers in the succession [*615] to a separate estate. But it is perfectly intelligible that upon the principle of survivorsbip the right of the co-parceners in an undivided estate should override the widow's right of succession, whether based upon the spiritual doctrine, or upon the doctrine of survivorship. It is, therefore, on the principle of survivorship that the qualification of the widow's right established by the Mitacshara, whatever be its extent, must be taken to depend. If this be so, we can hardly, in a doubtful case, and in the absence of positive authority, extend the rule beyond the reasons for it. According to the principles of Hindoo law, there is co-parcenaryship between the different members of a united family, and survivorship following upon it. There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the. others may well take by survivorship that in which they had during the. deceased's lifetime a common interest and a common possession. But the law of partition shows that as to the separately acquired property of one member of a united family, the other members of that family have neither community of interest nor unity of possession. The foundation, therefore, of a right to take such property by survivorship fails; and there are no grounds for) postponing the widow's right to any superior right of the co-parceners in the undivided property.

 

Again, the theory which would restrict the preference of the co-parceners over the widows to partible property is not only, as is shown above, founded upon an intelligible principle, but reconciles the law of inheritance with the law of partition. These laws, as is observed by Sir Thomas Strange, are so intimately connected that they may almost be said to be blended [*616] together; and it is surely not consistent with this position that co-parceners should take separate property by descent, when they take no interest in it upon partition. We may further observe, that the view which we have thus indicated, of the Hindoo law is not only, as we have shown, most consistent with its principles, but is also most consistent with convenience.

 

A case may be put of a Hindoo being a member of a united family having common property, and being himself possessed also of separate property. He may be desirous to provide for his widow and daughters by means of the separate property, and yet wish to keep the family estate undivided. But if the rule contended for were to prevail, he could not effect his first object without insisting on the partition, which, ex hypothesi, he is anxious to avoid.

 

The case standing thus upon principle, we proceed to consider the opinions of the Pundits and the authorities referred to by them.

 

The case appears to have been referred to the Pundits on several occasions. The first of these references was., made by the Zillah Court in 1833, in the suit No. 4 of 1832. The answer of the Pundits bears date the 28th of October in that year. It is unnecessary, however, to examine this particularly, since whatever is there laid down is included in the fuller statements which will be next considered.

 

These fuller statements were made by the same Pundits in answer to references directed by the Sudder Court before making the decree of the 17th of April, 1837 (a). The answers are dated the 28th of December, 1836, and the 16th of January, 1837.

 

On examining the reasons on which the Pundits [*617]

 

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(a) See questions and answers, 3 Moore's bd. App. Cases, 282. [*617]

 

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rest their opinions, it s to be observed that they, proceed upon the assumption that the texts cited, by them apply to the case which they were called upon to consider. They seem to have done so, both as to the passages cited from Vrihaspati and as to the text in the Mitacshara to which they refer; but they leave untouched the question which they ought to have considered, whether these authorities do or do not affect this particular case. What we have already said as to the text from the Mitacshara, and what we shall presently say as to the passages from Vrihispati is, we think, a sufficient answer to this part of the reasons on which the Pundits found their opinion. Then, again, they point to the distinction between obstructed and non-obstructed heritage; and because the widow's right is not mentioned as, obstructing the heritage, they infer that she cannot be entitled.

 

But the whole of this last argument seems to be founded on the passages in the Mitacshara contained in. clauses 2 and 3 of section 1, chapter 1; and these passages, when examined, clearly appear to be more definitions of "obstructed" and "non-obstructed heritage," and to have no bearing upon the relative rights of those who take in default of male issue. If, indeed, the argument which the Pundits 'have raised upon these passages be well founded, it would, as it seems, prevent the widow from taking in any case.

 

It remains, then, to consider the authorities, on which the Pundits rely in support of their opinions.

 

They consist of the text from the Mitacshara, to which we have already so frequently referred, and of passages from Vrihaspati and several other commentators on the Hindoo law. We have already intimated our opinion that the text from the Mitacshara [*618] does not apply to this case, and as to the passages from the Commentators they are all of equivocal import. They may, or may not, have been intended to apply to a case like the present, and if there was nothing more to be found upon the subject they might or might not be thought sufficient to warrant the opinion which the Pundits have founded upon them; but these passages seem to be the same passages, or passages similar to those, which were brought forward before the time of the Mitacshara, to show that widows were not entitled even where the property was wholly separate. We may, instance the passage from Nareda. These authorities failed when contrasted with conflicting passages in the works of other Commentators, of which the Pundits in this case have taken no notice, to negative the right of the widow where the property was wholly separate; and as they have failed to this extent, we cannot but think that the Pundits in this case have gone much too far in bringing them forward as uncontradicted authorities in favour of the opinion which they have formed that the widows are not, in this case, entitled to the separately acquired property. It seems to us, too, that the decision in the Sandayar case (a)--a decision also founded on the opinion of the Pundits of the Sudder Court is wholly at variance with the opinion of the Pundits in the present case. Whether the Pundits in that case were or were not right in the opinion, that the Zemindary became the separate property of the uncle by the transaction between him and his nephew, it is quite unnecessary to consider. All that is important to be considered is, that holding the Zemindary to have become the separate [*619] property of the uncle, they held that the widows, of the uncle's son became entitled to it, and that the Court followed that opinion. The Pundits, in the present case, attempt to reconcile the conclusions at which they have arrived with the opinion given by the Pundits in the Sandayar case, by assuming that the Pundits in that case proceeded upon an idea that the descendants of the common ancestor had been separated, but we see no foundation whatever, for that assumption. On the contrary, the facts of the case seem to us to negative it. If, indeed, there had been any such separation, we do not see how there could have been any question as to the rights of the widows.

 

The case, therefore, stands thus upon the authorities. On the one hand, we have the opinion of the Pundits in this case, which seem never to have been acted upon by any final decree. On the other hand we have the decision in the Sandayar case, and the other authorities cited for the Appellant at the Bar, particularly the passage from Menu, in [text corrected from original misprint] Sir William Jones, Vol. II, p. 250 [2nd Edit.], and the opinion of the Pundit, Kistnamachary, (2 Strangs "Hindu Law," p. 231), the latter and material portion of which is not open to the objection taken to the passage which precedes it by Messrs. Colebrooke and Dorm.

 

In this state of things their Lordships cannot but come to the conclusion that the balance of authority, as well as the weight of principle, is in favour of the Appellant's contention.

 

We proceed, then, to consider how the Sudder Court ought to have dealt with this case after Anga Moottoo Natchiar's death, and we are of opinion that [*620] that Court ought upon the applications made by the different parties claiming to prosecute the appeal, to have determined which of the parties was so entitled. We are of opinion, that Sowmia Natchiar and the grandson were not so entitled, and that their claims, therefore, ought at once to have been dismissed. The claims of the Appellant and her two sisters were founded on a right common to them as against the Respondent; and we think that the Court ought to have held them entitled to prosecute the appeal without prejudice to their rights inter se, founded upon the agreement which appears to have been entered into between them. It would then have been open to the Court to decide the case upon the merits; and upon the merits we are of opinion, for the reasons above given, that the Appellant and her sisters were well entitled to the Zemindary, as against the Respondent. We have, of course, not failed to consider the judgment of this Committee in 1844. Nor have we failed to observe that, in a recent edition of his Treatise on the Hindoo Law of Inheritance, Mr. Strange, one of the Judges of the Sudder Court of Madras, has expressed an opinion adverse to the conclusion at which we have arrived. But we think it probable that the case was not so fully discussed and examined in 1844, as it has been on the present hearing; and, at all events, we do not feel ourselves justified in holding the Appellant bound by the opinion which was then expressed; which, though of course entitled to the greatest possible respect, was not necessary to the decision then arrived at. And, as to the opinion expressed by Mr. Strange, it seems to rest upon the opinions of the Pundits, and the proceedings of the Court which we have now been called upon to review. [*621] If that opinion, had been supported by a uniform course of decisions, we should perhaps have felt some difficulty in contravening it; but as the case stands upon the authorities, we feel bound to give effect to the conclusion at which we have arrived.

 

We shall, therefore, humbly recommend Her Majesty to reverse the decrees and orders complained of by this appeal; to declare that the suit of 1856, which appears to us to have resulted from erroneous directions given by the Sudder Court, ought to have been and ought to be dismissed; and in the suit of 1845 to declare that Sowmia Natchiar and Mootoo Vadooga were not, nor was either of them, but that the Appellant and her sisters were, as against the Respondent, entitled to prosecute the appeal, and to recover the Zemindary this declaration to be without prejudice to the rights of the Appellant and her sisters inter se; and, further, to declare that an account ought to have been and ought to be directed of the rents and profits of the Zemindary received by the Respondent, or by his order, or for his use, since the death of Anga Moottoo Natchiar, with directions for payment to the parties entitled of what should be found due upon the account; and also to declare that the Zemindary ought at once to be put into the hands of the Collector, or of a Receiver to be appointed by the Court, with liberty to the Appellant and her sisters, or any of them, to apply at the Court as they may be advised. We shall further recommend that the case be remitted to the Sudder Court, with directions to carry these declarations into effect; but we shall not recommend that any costs be given of the suit of 1856, or of this appeal, or of any of the proceedings below. But any costs to which the Appellant has been subjected must be refunded.

 

 

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