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Ulagalum Perumal Sethurayar v. Rani Subbulakshmi Nachiar
Factual and Procedural Background
This appeal concerns succession to the impartible estate of Urkad in the District of Tinnevelly. The appeal is brought from a decree dated 19 March 1935 of the High Court of Madras which affirmed the decree of the Principal Subordinate Judge of Tinnevelly dated 23 April 1931. Both Courts below held that on the death in 1929 of Minakshi Sundara the estate devolved upon his widow, Rani Subbulakshmi Nachiar (plaintiff in the suit and respondent on this appeal). The appellant is Ulagalum Perumal, the younger half-brother of Minakshi Sundara and the first defendant in the suit.
Background facts (as found in the opinion): In 1902 S. Kotilinga Sethurayar (the settlor), a Hindu governed by the Mitakshara, owned the impartible zamindari as ancestral joint-family property. Displeased with his eldest son, and in the period just before the Madras Impartible Estates Act, 1902 came into force, the settlor executed a deed of settlement dated 29 May 1902. The deed declared that the zamindari would be held by the settlor for life and then absolutely to the male child of his second wife (then enceinte), failing which to that wife absolutely. The settlor thereby sought to exclude his eldest son from succession. The male child, Minakshi Sundara, was born in 1902, succeeded on the settlor's death in 1907, and died in July 1929. The Collector proposed to recognize the appellant (the settlor's son by his third wife) as entitled to succeed; the widow thereupon sued on 1 October 1929 to establish her right to succeed.
Legal Issues Presented
- Whether the 29 May 1902 deed effected by the settlor converted the impartible zamindari into the separate (self-acquired) property of the beneficiary (Minakshi Sundara), so that on his death the estate devolved upon his widow rather than by survivorship to other joint-family members.
- Whether, as a matter of law, a holder of an impartible estate (the settlor) could, by exercising his power of alienation in favour of one member of the family, defeat the succession rights of other members — i.e., whether the settlor could advantage one family member by terminating or overriding the rights of others by such alienation.
Arguments of the Parties
Appellant's Arguments
- The appellant's counsel argued that it was not competent in law for the settlor to advantage one member of the family by terminating the rights which other members had in the impartible estate. In other words, the settlor could not convert joint family property into separate property in favour of one member so as to defeat the rights of other members.
- He contended that while an alienation to a stranger would defeat the rights of family members, an alienation in favour of a member could not legally defeat the rights of other members. He relied on authorities which, in his submission, showed that junior members are not to be presumed to have relinquished their interests and that, absent surrender or relinquishment, the only recognised mode of separation was partition (which did not exist for impartible estates).
- The appellant relied specifically on decisions of the Board in Konammal v. Annadana, Shiba Prasad Singh v. Ram Prayag Kumari Debi, and Collector of Gorakhpur v. Ram Sundar Mal for the proposition that junior members' rights are not defeated by such an alienation unless they have expressly surrendered their claims.
Respondent's (Plaintiff's) Case
- The respondent (the widow) argued that when Minakshi Sundara acquired a vested interest under the settlor's 1902 deed, the zamindari ceased to be joint family property and became, as completely as if granted to a stranger, the separate property of the beneficiary. Accordingly, survivorship rules of the joint family could not operate to carry the estate to the eldest member of the senior branch; rather, it should descend according to rules governing succession to separate property and therefore devolved upon the widow.
- Her position emphasized that Minakshi Sundara's vested interest was taken under an exercise of the settlor's recognized power of alienation and not by any bargain or family arrangement binding on him.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sartej Kuari v. Deoraj Kuari, (1888) 10 All 373 = 15 IA 51 = 5 Sar 189 (PC) | Affirmation that holders of impartible estates possess a right of unfettered alienation (power to dispose of the estate, including gift or sale to strangers), a principle relied on to justify transfers that defeat joint-family succession rights. | The Court relied on this authority to recognize that the settlor had an unfettered power of alienation and that such a power may legitimately produce results that convert joint property into separate property when exercised in favour of a member; thus it underpinned the conclusion that Minakshi Sundara could take as separate property under the 1902 deed. |
| Lal Ram Singh v. Deputy Commissioner of Partabgarh, (1928) 10 AIR PC 160 = 76 IC 922 = 45 All 696 = 50 IA 365 = 26 OC 257 (PC) | Discusses complex questions about whether property that has come from a father to a son is ancestral (e.g., whether a son takes an interest at birth). The Board left certain questions on this point unsettled. | The Court noted this decision as leaving unresolved the specific question whether a son would take an interest at birth in certain circumstances; it relied on the fact that the present case did not require resolution of that unsettled point and thus did not rest its decision on any determination of that issue. |
| Konammal v. Annadana, (1928) 15 AIR PC 68 = 108 IC 354 = 51 Mad 189 = 55 IA 114 (PC) | Authority for the proposition that junior members of an impartible family estate are not to be treated as having given up their interests (no presumption of relinquishment) where there is no right to partition. | The appellant relied on this authority to argue against the effect of an alienation in favour of a family member. The Court considered the authority but declined to accept that it barred the settlor's exercise of an unfettered alienation which could convert estate into separate property. |
| Shiba Prasad Singh v. Ram Prayag Kumari Debi, (1932) 19 AIR PC 216 = 138 IC 861 = 59 Cal 1399 = 59 IA 331 (PC) | Used with Konammal to support the proposition that absent surrender or relinquishment, junior members' interests are not defeated by mere in-family alienation; partition is the recognised mode to separate property. | The Court acknowledged these decisions relied on by the appellant but held that they did not prevent the settlor, possessing an unfettered power of alienation, from creating separate property in favour of a family member which would defeat other members' survivorship rights. |
| Collector of Gorakhpur v. Ram Sundar Mal, (1934) 21 AIR PC 157 = 150 IC 545 = 56 All 468 = 61 IA 286 (PC) | Also cited for the doctrine that junior members are not assumed to have surrendered their rights in impartible estates; used to argue limitations on altering joint-family succession. | The Court considered this authority but held that the principle did not preclude the effect of an unfettered alienation by the settlor which produced separate ownership for the grantee and thereby displaced survivorship succession. |
| Ajai Verma v. Mt. Vijai Kumari (Raja Fateh Singh's will case), reported (1939) 26 AIR PC 22 = 179 IC 620 (PC) | Illustrative authority that a gift or testamentary disposition in favour of a family member may create in that grantee self-acquired (partible) property in his hands; the High Court and the Board treated such property in the grantee's hands as self-acquired for descent purposes. | The Court relied on the reasoning in this case to illustrate and support the position that a transfer under the settlor's power could produce separate property in the grantee's hands. The Board observed that if a moiety had passed by will to a son, it would have been partible property in his hands; this analogy bolstered the Court's view that alienation to a member can result in separate ownership. |
Court's Reasoning and Analysis
The Court examined the appellant's submission that the settlor could not, by alienation in favour of a family member, defeat the rights of other members. The Court proceeded in these analytic steps:
- The Court accepted the proposition (drawn from authorities cited by the appellant) that joint property governed by a custom of impartibility cannot be converted into separate property by a right to call for partition, because such a right is inconsistent with the custom. However, the Court emphasized that this does not mean the same result cannot be achieved by other means (for example, by surrender or alienation).
- The Court considered the effect of the settlor's recognized right of alienation (as affirmed in Sartej Kuari v. Deoraj Kuari). Where a settlor possesses an unfettered power to alienate — including the power to give or sell to strangers — that power can logically produce outcomes similar to partition when exercised in favour of a family member. The Court noted that a Hindu joint-family member may simultaneously be a member of the family and also own separate property; holding separate property does not negate joint-family membership.
- The Court analyzed whether the voluntary nature of the transfer, the lack of consideration, or the fact that the transfer embraced the whole estate rendered the grantee's interest still joint-family property. While the Court assumed without deciding that such considerations might matter in some circumstances, it found them inapplicable on the facts: Minakshi Sundara took a vested interest under the 1902 deed at a time when his elder brother was alive, and the deed was expressly framed to defeat ordinary succession.
- The Court held that the accidental fact that Minakshi Sundara happened to be the eldest surviving son at the time of the settlor's death could not retrospectively alter the deed's operation. The deed had vested Minakshi Sundara with an interest intended to exclude the eldest son; therefore, the property in his hands should be treated as separate for succession purposes.
- The Court found corroboration in the reasoning of the Ajai Verma / Vijai Kumari case: transfers made by a holder of an impartible estate under his power of alienation may be treated as conferring self-acquired or partible property in the hands of the grantee, and this principle was applicable to the facts before the Court.
- On this basis the Court rejected the appellant's contention that an in-family alienation could never defeat other members' rights in the absence of surrender, and concluded that the 1902 deed produced an interest in Minakshi Sundara that was no longer subject to survivorship within the joint family.
Holding and Implications
APPEAL DISMISSED.
Direct effect on the parties: The Board advised that the appeal be dismissed with costs, thereby affirming the decrees below which held that on Minakshi Sundara's death in July 1929 the impartible estate of Urkad devolved upon his widow, Rani Subbulakshmi Nachiar (the plaintiff and respondent).
Broader implications (as reflected in the opinion): The Court rejected the appellant's broad contention that a settlor could not, by alienation in favour of a family member, defeat other members' rights. Applying existing authorities (notably Sartej Kuari and the reasoning in Ajai Verma), the Court accepted that a holder of an impartible estate who possesses an unfettered power of alienation may, by exercising that power in favour of a member, create separate (self-acquired) property in the grantee's hands such that survivorship rules of the joint family will not operate. The decision applies the Board's prior articulation of the holder's power of alienation to the specific factual context and affirms that the 1902 deed vested Minakshi Sundara with an interest that excluded the ordinary course of joint-family succession.
The opinion does not purport to decide certain related and more difficult questions (for example, whether a son would take an interest at birth in particular circumstances), which earlier authorities such as Lal Ram Singh left unsettled; it confines its ruling to the application of the settlor's exercised power of alienation in the present factual matrix.
Sir George Rankin:-
This appeal concerns the succession to the impartible estate of Urkad in the District of Tinnevelly and is brought from a decree dated 19th March 1935 of the High Court of Madras affirming, upon the question now in dispute, the decree (23rd April 1931) of the Principal Subordinate Judge of Tinnevelly. Both Courts in India have held that upon the death in 1929 of Minakshi Sundara the estate of Urkad devolved upon his widow Rani Subbulakshmi Nachiar who was plaintiff in the suit and is respondent upon this appeal. The appellant is Ulagalum Perumal, the younger half brother of Minakshi Sundara, who was the first defendant in the suit. It is not now contended that the appellant and Minakshi Sundara were divided. The trial Court held that there had been a partition of the partible property of the joint family, but this finding was reversed by the High Court and is not appealed from.
In 1902 the zamindar was S. Kotilinga Sethurayar (hereinafter called the settlor), a Hindu governed by the Mitakshara. He held the impartible estate as ancestral property belonging to the joint family, of which he was a member, and not as his separate property. His first wife had died, but he had married again. By his first wife he had a son, K. Kotilinga Sethurayar. His second wife was enceinte. Being displeased with his son he desired to defeat his son's prospect of succession to the estate by making use of the power of alienation recognized as belonging to owners of impartible estates by the decision of this Board in the case in Sartej Kuari v. Deoraj Kuari, (1888) 10 All 373=15 IA 51=5 Sar 189 (PC). His power of alienation was however in danger of becoming restricted by legislation so as to become no greater than the power of a managing member of a joint Hindu family to alienate ancestral property. A few days before 2nd June 1902, when the Madras Impartible Estates Act, 1902 (Madras Act 2 of 1902), came into force, he executed a deed of settlement dated 29th May 1902, in respect of the impartible zamindari. By that deed he declared that he was dissatisfied with the character and conduct of his son and was desirous that the son should not succeed to the zamindari. He settled the zamindari upon himself for life and subject thereto granted it absolutely to the child with whom his second wife, Thanga Pandichi, was then enceinte, if such child should be born alive and a male. If the child should not be born alive and a male or being born alive and a male should die before the settlor without leaving male issue, the zamindari was to go to his wife Thanga Pandichi absolutely. His son was given a maintenance allowance and a house. The settlor appointed himself trustee of the settled property.
Thereafter on 13th August 1902, Minakshi Sundara was born of the second wife Thanga Pandichi. In 1903 the settlor's first-born son. K. Kotilinga Sethurayar, died. In 1904 the second wife died, and the settlor having married a third time the appellant Ulagalum Perumal was born to him by his third wife in June 1906. On 7th January 1907, the settlor died and Minakshi Sundara succeeded to the zamindari, the estate being managed on his behalf by the Court of Wards till 1923, when he came of age. He died in July 1929, and as the Collector proposed to recognize his half brother, the appellant as entitled to succeed to the impartible estate, the widow brought her suit on 1st October 1929 to establish her right to succeed. Her case is that when in 1902 her husband took a vested interest in the estate by virtue of his father's exercise of his unfettered right of alienation, the estate ceased to be property of the joint Hindu family as truly and completely as if it had been granted to a stranger to the family. Accordingly, that the principle of survivorship cannot on his death be applied to carry the estate to the eldest member of the senior branch of the family; and that it descends to her according to the rules which govern succession to separate property. The High Court was careful to point out that the present case raises no question such as might have arisen had Minakshi Sundara died leaving sons - whether the estate in his hands was ancestral as having come to him from his father in the sense that a son would have taken an interest therein at birth. On this subject there has been much divergence of opinion in India and it was left unsettled by the judgment of the Board in 5 Lal Ram Singh v. Deputy Commissioner of Partabgarh, (1928) 10 AIR PC 160=76 IC 922=45 All 696=50 IA 365=26 OC 257 (PC) at p. 275. It is clear that Minakshi Sundara did not take his interest under the deed of 1902 under any contract or bargain made by him or on his behalf or by any other persons so as to bind him. The settlor was disposing of the estate in full appreciation of his power to alienate, and there is no room for suggestions as to family arrangement or mere relinquishment by the settlor or mere supersession of the eldest son. Indeed, if the settlor's intention be supposed to govern the matter, the provisions of the deed of 1902 indicate, as the High Court notice, an intention that the estate should not continue to be joint family property; as otherwise in certain quite probable events the deed would not effectively exclude the eldest son. In particular should the son to be born die in the lifetime of his elder brother leaving sons, the elder brother would succeed as senior to any of such sons if the property were to pass by survivorship as joint family property.
The able argument of learned counsel for the appellant was of a far-reaching character. He contended that it was not competent in law for the settlor to advantage one member of the family by terminating the right which other members of the family had in the estate. Or putting the same matter in another form, that it was not competent for Minakshi Sundara to take the estate as self-acquired property. Learned counsel contended that while an alienation to a stranger would defeat the rights of all the members of the family, the result of an alienation in favour of one member could not in law be to defeat the rights of the other members. For this contention he relied upon decisions of the Board to the effect that as the right of partition does not exist in the case of an impartible estate, junior members of the family will not be taken to have given up their interest in such an estate or their claim to succeed thereto unless they can be proved to have surrendered it: Konammal v. Annadana, (1928) 15 AIR PC 68=108 IC 354=51 Mad 189=55 IA 114 (PC), Shiba Prasad Singh v. Ram Prayag Kumari Debi, (1932) 19 AIR PC 216 =138 IC 861=59 Cal 1399=59 IA 331 (PC), and Collector of Gorakhpur v. Ram Sundar Mal,(1934) 21 AIR PC 157=150 IC 545=56 All 468=61 IA 286 (PC). He argued that the settlor, having no right to partition the estate or to claim as against the eldest son or other members to hold it as his separate property, he cannot by an alienation compel a severance between one son and another. In the absence of surrender or relinquishment by a member of his interest, partition, it is said, is the only way by which joint family property can become the separate property of a member, and this result is contrary to the custom of impartibility.
Their Lordships have given full consideration to this argument but do not consider that it can be sustained. No doubt joint property cannot, if governed by a custom of impartibility, be converted into separate property by any exercise of the right to call for a partition as the existence of such a right is inconsistent with the custom. But it does not follow that by no other way can the same result be arrived at. Admittedly it can be achieved by surrender or relinquishment. And it would seem that the right of any given person to succeed by survivorship to any given property must depend both upon the person continuing to be a member of the joint family and also upon the property continuing to belong to the family. If the zamindar has a power of alienation which is not limited by legal necessity nor liable to be controlled by any other member of the family, so that he can squander the property or give or sell it to a stranger, thereby defeating the rights of other members, there would not seem to be great force in the reflection that when he transfers to a member of the family he is effecting a result similar to that produced by partition without having the power to compel partition. The status of an individual as a member of a Hindu joint family is in no way inconsistent with his owning separate property; and the right of unfettered alienation affirmed in Sartej Kuari v. Deoraj Kuari, (1888) 10 All 373=15 IA 51=5 Sar 189 (PC), may well produce results, when exercised in favour of a member, which are as favourable or more favourable to him than those which partition would have produced. If the property ceases to be the property of the joint family there is nothing to which the right by survivorship can attach and there is no added difficulty in its becoming the separate property of an individual member. The right of alienation was held to belong to the holder of an impartible estate because the other members of his family, having no right to call for partition, were thought to have no right to control him: if in some cases the result of this doctrine upon the rights of the other members is to defeat them altogether, the right of alienation cannot, in their Lordships' opinion, be limited in other cases merely by reason that the holder had no right to call for partition.
If then there be no rule of law to prevent the settlor from giving or Minakshi Sundara from taking the estate as self-acquired or separate property, it remains to consider whether the interest given to Minakshi Sundara under the deed should be regarded as joint family property and not as his separate property by reason that the transfer to him was voluntary and not for valuable consideration and that the interest transferred was an interest in the whole of the zamindari estate and not only in a part thereof. Assuming without affirming that such considerations might in certain circumstances lead to the conclusion that the property was taken as joint family property, their Lordships cannot in the present case attribute to them any cogency in that respect, in view of the fact that Minakshi Sundara took a vested interest at a time when his elder brother was alive, and under a provision which was intended to defeat the ordinary course of succession to the estate. It so happened that at the time of the settlor's death Minakshi Sundara was his eldest surviving son, but this accident cannot retrospectively affect the operation of the deed of 1902. In [Appeals Nos. Ajai Verma v. Mt. Vijai Kumari, Since reported in (1939) 26 AIR PC 22=179 IC 620 (PC)] (at present unreported) Raja Fateh Singh, a Hindu governed by the Mitakshara and owner of an impartible estate in the Shahjahanpur district of Agra, had made a will whereby half the estate was left to his eldest son and half to his second son, Vijai Verma. The will was challenged, but the High Court of Allahabad upheld it on appeal. The younger son had died leaving an only daughter, Vijai Kumari. In the view of the High Court she was entitled to succeed to half of the estate, though the Board held on appeal that she was excluded by a custom in this Rajput family which disinherited daughters. The learned Judges of the High Court (Mukerji and Bennet JJ.) said in their judgment :
Issue 3 is as follows : - 'Whether in the case of it being found that the property is impartible and Vijai Verma got a half share in it under his father's Will the property taken by Vijai Verma would descend by way of inheritance to a single male heir by the rule of lineal primogeniture and whether therefore Vijai Kumari will be excluded from inheritance ?'
The question raised in this issue is not free from difficulty, and there is no clear decided authority either way. On principle however, we think the issue ought to be answered in favour of Vijai Kumari.
The argument on behalf of the defendant is fairly summarized in the issue itself. It is urged that by virtue of family custom the property of the Raja of Pawyan is an impartible estate descendible in a particular way and the mere fact that a portion of it is given away to one of the members of the family will not change the character of the property and make its mode of descent different from the original method. But this argument overlooks the fact that Vijai Verma is not entitled to inherit any portion of the property in suit. He is as much a stranger for the purposes of inheritance as one who has nothing to do with the family. He gets the property by virtue of the 'gift' made by his father in his favour under the will. It matters little whether the gift is in favour of a stranger or in favour of a person belonging to the same stock as the defendant. The property in the hands of Vijai Verma must be treated as self-acquired property for the purposes of descent to his heirs.
At the hearing before the Board this view was not challenged, and in the judgment delivered on 19th December 1938 by Sir George Lowndes it was stated:
Assuming as their Lordships do in this judgment, that a moiety of the estate passed by the will of Raja Fateh Singh to Vijai Verma, it is admitted that it would be partible property in his hands and would descend as such on his death.
While their Lordships do not doubt that the High Court of Allahabad rightly held in that case that the property in question, if it passed under the will to Vijai Verma became his self-acquired property, they are not to be taken as affirming that any different result would have ensued had Vijai Verma been the person entitled to inherit. They say nothing here as to family arrangement or the power of a grantor to impose conditions, but otherwise, so far as regards the joint family, they see considerable difficulty in giving different effect to an alienation made under the power declared to exist in Sartej Kuari v. Deoraj Kuari, (1888) 10 All 373=15 IA 51=5 Sar 189 (PC), according as the grant be made voluntarily or for consideration, comprises the whole or only part of the estate, is in favour of a member of the family or a stranger, or in favour of the person entitled to succeed or of some other member of the family. They recognize however that as between the grantee and his sons questions may arise upon which these considerations, or some of them, may have importance. Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.
Appeal dismissed.
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