The Judgment of the Court was delivered by

Leach, C.J:— This appeal raises the question of right of illegitimate sons of a member of a joint family of the Sudra caste to maintenance out of the family estate when it is impartible. The suit was filed by the respondents in the Court of the Subordinate Judge of Nellore to establish their status as illegitimate sons of Venugopal, the paternal uncle of the appellant, the Maharajah of Venkatagiri, and the right which they claimed to maintenance out of the Venkatagiri zamindari, the succession to which is governed by the law of primogeniture. They averred that they were entitled under a deed of family settlement, dated 8th April 1889, to an allowance of Rs. 1000 per mensem from the death of their father which occurred on 20th June 1920, but their claim did not rest on the deed alone. They said that irrespective of the deed they were entitled to an allowance for maintenance by custom and also under Hindu law. The appellant refused to recognize the respondents as the illegitimate sons of his uncle and said that even if they were his sons they were not entitled to be maintained by the estate. The Subordinate Judge held that the respondents had established their status as illegitimate sons of Venugopal and their claim to maintenance from the estate at the rate of Rs. 1000 per mensem under the deed of 8th April 1889, but found against them in so far as their case was based on custom and Hindu law. The Subordinate Judge also held that the respondents were entitled to an allowance from the date of the death of their father and included in the decree a direction to the appellant to pay the respondents Rs. 1,44,000 as arrears of the allowance. The allowance was made a charge on the estate. The appellant accepts the finding of the trial Court on the question of status, but challenges the decision that they are entitled to maintenance out of the estate. The Venkatagiri family belongs to the Velama community, a sub division of the Sudra caste. In the year 1878 the estate was in the possession of Raja Velugoti Kumara Yachama, who had seven sons, three of whom had before that year been given in adoption. The relation, ship of the parties will be more readily appreciated if I reproduce the pedigree set out in the judgment of the lower Court:

2. In October 1878 Raja Velugoti Kumara Yachama handed over the estate to his eldest son Rajagopala Krishna. In 1889 Muttukrishna and Venkata Krishna, the two brothers nearest in age to Rajagopala Krishna, claimed that the Venkatagiri Zamindari was partible and that the four brothers who remained in the family were each entitled to a fourth share in the family properties. As the result of advice given to them by their father and friends of the family, Muttukrishna and Venkata Krishna withdrew the claim to partition and recognized the zamindari to be impartible, but the settlement involved the payment of large sums of money to the three younger brothers, Muttukrishna, Venkatakrishna and Venugopal. Venugopal was then a minor. The terms were embodied in the deed of 8th April 1889, Venugopal being represented by his father. It will be necessary to refer to certain of the provisions of the deed in detail, but for the purpose of the narrative its terms may be summarized as follows: (1) The Venkatagiri estate should be treated as impartible and should descend along the eldest line of descent; (2) Muttukrishna, Venkatakrishna and Venugopal should each receive a sum of Rupees 5,81,252-11-10; (3) Muttukrishna, Venkatakrishna and Venugopal should also receive a sum of Rs. 40,000 each for the purpose of purchasing or building a residence; (4) Venkatakrishna and Venugopal being unmarried should each receive Rupees 15,000 for marriage expenses; (5) Raja gopalakrishna and his successors to the estate should pay to Muttukrishna, Venkatakrishna and Venugopal a sum of Rs. 1000 each per mensem for life and on their death a similar amount to their male descendants by way of maintenance, the amount payable to each branch being Rs. 1000 irrespective of the number of descendants. In 1890, a suit was filed on behalf of Venugopal impeaching the settlement and reiterating the claim that the estate was partible. This suit was filed shortly before Venugopal came of age. On his attaining majority, he withdrew the suit and recognized the validity of the deed of 8th April 1889. The settlement therefore became final so far as the brothers were concerned.

3. Venugopal never married, but by one Saraswathamma he had two sons, the respondents. Saraswathamma was of the Balija community, also a sub-division of the Sudra caste. Under Hindu law, the illegitimate son of a Sudra by a dasi, that is a Hindu concubine in his continuous and exclusive keeping, is entitled not only to maintenance but to a share in the estate of his father, the share being half that of a legitimate son. It is conceded that Saraswathamma's status was that of a dasi. Respondent 1 was born on 24th September 1907. There is no evidence when respondent 2 was born, but he is the younger of the two. On 28th August 1916, Venugopal executed a will under which he left Rupees 5000 to a nephew, Rs. 5000 to a niece, Rs. 5000 to Saraswathamma for the construction of a house, Rs. 5000 to one servant, five sums of Rs. 200 each to other servants, a garden in Venkatagiri to two nephews, and the remainder of his estate to the respondents. Venugopal died on 20th June 1920 and probate of his will was obtained. The record of the probate proceedings shows that the net estate was sworn at Rs. 10,04,518-14-5. Charges of maladministration against one of the executors were made subsequently and it would appear that a large portion of the property which Venugopal left was lost. The suit out of which this appeal arises was instituted on 4th July 1982, just over 12 years after the death of Venugopal, but it was within time as the period of limitation expired during the Court vacation and the suit was filed on the reopening day. The reason given for the delay in filing the suit was that the respondents were not aware of their rights until 1930. Two grounds have been urged in support of the appeal. In the first place it is said that the Subordinate Judge erred in holding that the respondents are entitled to maintenance under the deed. In the second place it is said that even if the deed can be read as conferring a right to maintenance on the illegitimate sons of Venugopal it is bad because it offends against the first rule laid down in 9 Beng LR 3771 in that by limiting the right to maintenance to male descendants it creates an estate unknown to Hindu law. The respondents, in addition to denying the validity of the appellant's contentions, say that the trial Court erred in holding that they are not entitled to maintenance by reason of custom, and maintain their plea that they have a right to maintenance under Hindu law irrespective of custom. The appeal therefore raises all the questions raised in the trial Court except that relating to the status of the respondents. The provisions with regard to maintenance are contained in cl. 5 of the deed of settlement. Owing to criticizm of the translations of the document which appear in the printed record the Court had this clause re-translated. The new translation has been accepted by both parties as being correct and in view of the importance of the clause I will set it out in full:

As the said Venkatagiri Estate is impartible and as the aforesaid Sri Muttukrishna Yachendrulu Yarn, Sri Venkata Krishna Yachendrulu Varu and Sri Venugopala Krishna yaohendrulu Varu and their purusha santhathi (male issue, progeny or descendants) are entitled to get allowances from the said estate, we the aforesaid the Honourable Rajah Velugoti Sri Rajagopala Krishna Yaohendra Bahadur, Panohazar, Maraabdar, K.C.I.E Rajah of. Venkatagiri, Sri Muttukrishna Yachendrulu, Sri Venkata Krishna Yachendrulu and, on behalf of Sri Venugopala Krishna Yachendrulu, his father and guardian Sri Rajah Velugoti Kumara Yachama Nayudu Bahadur, C.S.I, appointed the Rajah of Bobili, namely Sri Rajah Rao Venkata Swetachalapati Ranga Rao Bahadur Varu, as mediator, to determine the amount of allowance to be given to the said Sri Muttukrishna Yachendrulu, Sri Venkatakrlshna Yachendrulu and Sri Venugopala Krishna Yachendrulu and to their purusha santhathi. The above named mediator fully taking into consideration the status of all the parties, the condition and respectability of the estate and all other matters which are fit to be considered, decided that the said Honourable Rajah Velugoti Sri Rajagopala Krishna Yaohendra Bahadur Panchahazar, Mansabdar, K.C.I.E, Rajah of Venkatagiri, should pay allowances in the manner fixed herein below:

In pursuance of that decision, the said Honourable Rajah Velugoti Sri Rajagopala Krishna Yaohendra Bahadur, Panchahazar, Mansabdar, K.C.I.E, Rajah of Venkatagiri, and those that succeed to the rule after him, undertake and accept by means of this document to pay allowances every month from the income of that estate, from 6th April 1889 in the manner stated below: Sri Muttukrishna Yachendrulu shall be paid at the rate of Rupees one thousand (Rs. 1000) per month for the rest of his life; Sri Venkata Krishna Yachendrulu at the rate of Rupees one thousand (Rs. 1000) per month for the rest of his life; and the minor Sri Venugopala Krishna Yachendrulu, until his minority ceases, by his father and guardian, Sri Rajah Velugoti Kumara Yachama Nayudu Bahadur, C.S.I, and, after his minority ceases, the said Venugopala Krishna Yachendrula (himself) Rupees one thousand (Rs. 1000) per month, for the rest of his life: the said Honourable Rajah Velugoti Sri Rajagopala Krishna Yachendra Bahadur, Panchahazar, Mansabdar, K.C.I.E, Rajah of Venkatagiri, and the Rajahs that rule in Venkatagiri after him, shall, after the lifetime of the said Sri Muttukrishna Yachendrulu, pay his pnmsha santhathi (male issue, progeny, descendants) in perpetuity in the manner aforesaid the same allowance, that is, at the rate of Rupees one thousand (Rs. 1000) per month. After the life of the said Sri Venkata Krishna Yachendrulu, his purusha santhathi shall, in perpetuity, be paid the same allowance amount, that is at the rate of Rupees one thousand (Rs. 1000) per month in the aforesaid manner. After the life of the said Sri Venugopala Krishna Yachendrulu, his purusha santhathi, shall, in perpetuity, be paid the same allowance amount, that is, at the rate of Rupees one thousand (Rs. 1000) per month, in the aforesaid manner. But, if, at any time, in any one of the branches of the said Sri Muttukrishna Yachendrulu, Sri Venkata Krishna Yachendrulu and Sri Venugopala Krishna Yachendrulu, there be more than one male member, such males, and their purusha santhathi shall take the said allowance amount of Rupees one thousand in proportion to their respective shares, in the same manner as they would respectively take their other properties separately by way of inheritance according to the Hindu law. Moreover, if in any of the aforesaid three branches of our family, viz. the branch of Sri Muttu Krishna Yachendrulu, the branch of Venkata Krishna Yachendrulu, and the branch of the minor Sri Venugopala Krishna Yachendrulu, any male should the without purusha santhathi, either by way of auras or by way of adoption, the allowance amount that was being received by the person who so died without purusha santhathi shall go to the gnatis (agnates) who are nearest to him in his own branch according to Hindu law.

Should the aforesaid person who dies without purusha santhathi leave any widow or widows and maintenance have to be paid to them, only the nearest gnatis who get the allowance of such deceased person in the manner mentioned above, shall be liable therefor. Further, should any of the said three branches of our family become extinct by the total absence of purusha santhathi either by way of auras or by way of adoption, the allowance being paid to that branch shall be stopped subject to the condition that, if there be then a widow or widows left of the last male who died in that branch, one-half of the allowance of Rupees one thousand (Rs. 1000) that was being paid to that male, viz. Rupees five hundred (Rs. 600) shall be paid to the widow or widows of the person who so died without purusha santhathi as maintenance for life. But should there be female santhathi in that branch, it shall not be paid to such female santhathi, nor shall it be paid to the purusha santhathi of the other two branches or to either of the branches, or in any other manner. As all the matters regarding the expenses incurred from out of the income of the said Venkatagiri estate for Sri Rajah Velugoti Kumara Yachama Naidu Bahadur C.S.I one of the parties to this document and the father of the other parties have been settled by the registered kararnamas entered into mutually on 17th and 19th March 1883 between our father Sri Rajah Velugoti Kumara Yachama Nayudu Bahadur, C.S.I and the Honourable Rajah Velugoti Sri Raja Gopala Krishna Yaehendra Bahadur, Panchahazar, Mansabdar, K.C.I.E, Rajah of Venkatagiri, those anatters relating to the said Rajah Sri Velugoti Kumara Yachama Nayudu Bahadur, C.S.I, are not referred to in this document. But, as the share and allowance of the minor Sri Venugopala Krishna Yachendrulu, have been settled under this document, the Honourable Rajah Velugoti Sri Rajagopala Krishna Yaehendra Bahadur, Fanchahazar, Mansabdar, K.O.I.E, Rajah of Venkatagiri, need not pay for the expenses of Sri Venugopala Krishna Yachendrulu mentioned in the kararnamas aforesaid dated 17th and 19th March 1888.

4. The Subordinate Judge was of the opinion that the parties did not contemplate the exclusion of illegitimate offspring and as the words purusha santhathi were wide enough to cover illegitimate issue he considered that the deed should be so construed. I agree with the Subordinate Judge that the intention of the signatories to the document must be gathered from the document itself read in the light of the surrounding circumstances, but I am unable to accept his conclusion. Now what were the surrounding circumstances? The family was an ancient one and of important standing in the Madras Presidency. Its adult members had all agreed that its estate was impartible and that this should be recognized in a formal deed in which provision should be made for the maintenance of the younger sons and their descendants. While it is true that under Hindu law, especially where Sudras are concerned, an illegitimate son is in a very different position to that occupied by an illegitimate son under English law, it cannot be said that illegitimacy is regarded with favour in a respectable Hindu family and this much was conceded on behalf of the respondents. In AIR 1933 Mad 6592 Krishnan Pandalai J. stated that the respect for marriage and the social position of legitimate children is no less among Hindu Sudras than among Brahmins and Englishmen. In this case the Court had to consider a deed of settlement in which the settlor had used the word santhathi. As he was sitting alone the learned Judge did not decide whether it would cover illegitimate issue of a Sudra but observed that as a mere question of construction he would hesitate to say that a share of the inheritance being awarded to illegitimate children of Sudras in certain cases was necessarily conclusive of the meaning of a Sudra donor of property as to what he meant when he talked of his santhathi. In the circumstances surrounding the execution of the deed in the present case it is not likely that the members of the family who subscribed their names to the document had any intention of making provision for illegitimate descendants and in my opinion an examination of the document shows a clear intention to exclude them.

5. As is indicated in the accepted translation of cl. 5 of the deed the words purusha santhathi mean “male issue, progeny or descendants” (purusha=male, santhathi=issue, progeny or descendants) and therefore used in their widest sense the words would cover illegitimate descendants. But it is inconceivable that they should be used in this sense in the first operative clause of the document. This part relates to the succession to the gaddi and reads as follows:

As this Venkatagiri estate is impartible and should descend along the eldest line of descent, the said estate, the immovable properties connected therewith and the other immovable properties acquired with the income of the said estate should be enjoyed by the eldest of us, four brothers and the heir of the aforesaid Sri Rajah Yelugoti Kumara Yachama Nayudu Bahadur, C.S.I namely the aforesaid the Hon'ble Rajah Yelugoti Sri Rajagopala Krishna Yaohendra Bahadur, Panchahazar, Mansabdar, K.C.I.E, Raja of Venkatagiri and after him by his son, son's son and other male descendants (purusha santhathi) in the eldest line of descent, that if there be no aurasa or adopted sons in the branch of the said Hon'ble Rajah Velugoti Sri Rajagopala Krishna Yaohendra Bahadur, Panchahazar, Mansabdar, K.C.I.E, Rajah of Yenkatagiri, and if that branch should become extinct without male issue, such near heir in the eldest line as would, according to law and custom, get the family impartible properties and his descendants should enjoy the same and that as regards all these, namely the said estate, all the properties connected therewith, rights, powers and privileges, the Balers for the time being shall, according to law and custom, completely possess all the privileges and enjoy them, subject only to the condition of paying allowances to the other members of our family, suitably to their respective status out of the income from the estate and the properties.

6. Not only is it inconceivable that the members of this ancient family should contemplate an illegitimate son ascending the gaddi but it will be observed that the direction with regard to the succession in the event of Rajagopala Krishna's branch becoming extinct follows the use of the words if there be no aurasa or adopted sons. That an illegitimate son can never be aurasa is accepted. Where a word is used in a document in one sense the same meaning must be given to it where it appears elsewhere in the document unless it is evident from the context that a different meaning should be put upon it. The learned advocate for the respondents had very little to say with regard to the meaning to be attached to the words purusha santhathi as used in that part of the document which I have just quoted, but urged that the expression should be given its widest meaning where it appears in cl. 5. There is nothing in the context which warrants the assumption that, the words are used in cl. 5 in a different sense from the sense in which they are used in the first operative clause. On the contrary there is again clear indication that the intention was to limit the maintenance allowance to legitimate descendants. Cl. 5 provides that where a male member of any of the three branches should the without purusha santhathi, “either by way of aurasa or by way of adoption,” his allowance should go to the agnates who are nearest to him in his own branch. The clause further provides that in the event of any branch becoming extinct by the total absence of purusha santhathi “either by way of aurasa or adoption,” the allowance to that branch shall cease altogether, subject to the widow of the last male member of the branch being entitled to receive half the amount for her lifetime. The express reference to aurasa issue or sons by adoption leaves no doubt in my mind that the parties only contemplated the right of maintenance being conferred upon legitimate descendants and that they used the words purusha santhathi in this sense. Accordingly I hold that the respondents are not entitled to maintenance out of the income of the Venkatagiri estate by reason of the deed of 8th April 1889.

7. My learned brother shares the opinion which I have expressed with regard to the effect of the deed and therefore it is not necessary to discuss the question whether the document is invalid because it creates an estate unknown to Hindu law. There, fore I will pass on to consider whether the respondents are entitled to maintenance by reason of custom or the provisions of Hindu law and if they are, the amount to be paid to them. The claim based on custom does not call for much discussion as we concur in the finding of the Subordinate Judge on this question and accept his reasons. The evidence adduced by the respondents is not sufficient to prove either a family or territorial custom and there is evidence in contradiction. It would appear that some zamindaries, mostly Oriya, have made pro vision for the maintenance of illegitimate children of members of their families, but even if the evidence could be regarded as being sufficient to prove a custom in Oriya zamindaries (these are now for the most part included in Province of Orissa) it does not follow that such a custom exists in the Velama Zamindaries, which, as the Subordinate Judge has pointed out, are numerous in the Kistna, Godavari, Vizagapatam, Nellore and Chittor districts of the Madras Presidency. In 3 IA 2593 Sir Barnes Peacock in delivering the judgment of the Judicial Committee observed that a custom is a rule which in a particular family or in a particular district, has from long usage obtained the force of law. It must be ancient, certain and reasonable and being in derogation of the general rules of law must be construed strictly. A custom in a Hindu family to grant maintenance to illegitimate sons could not be regarded as being unreasonable. In fact the custom would only be following Hindu law. But custom can only be relied on where it is ancient and certain and the evidence here Calls very short of proving this. I have no hesitation in concurring in the finding of the learned Subordinate Judge that a custom has not been proved in the present case.

8. The question whether an illegitimate son is entitled under the Hindu law to maintenance out of an impartible estate is one of considerable difficulty as the authorities are not in agreement. The question of the right to maintenance of an illegitimate son of a member of a family owning a partible estate has in the main been settled by the decision of the Privy Council in 58 IA 402 : 55 Mad 1.4 In that case a suit was instituted for past and future maintenance by the illegitimate sons and an illegitimate daughter of one P.M.A Muthia Chetty, a Sudra by caste, by a continuous concubine. The father who was joint with his uncles and uncles sons died leaving, no separate estate, but the joint family possessed considerable properties. The Privy Council held that the illegitimate son of a Sudra by a continuous concubine has the status of a son and in such circumstances he is entitled as a member of the family to maintenance out of joint property in the hands of the collaterals. In delivering the judgment of the Privy Council, Sir Dinshah Mulla observed:

On a consideration of the texts and the cases on the subject their Lordships are of opinion that the illegitimate son of a Sudra by a continuous concubine has the status of a son, and that he is a mem bar of the family; that the share of inheritance given to him is not merely in lieu of maintenance, but in recognition of his status as a son; that where the father has left no separate property and no legitimate son, but was joint with his collaterals, as in the present case, the illegitimate son is not entitled to demand a partition of the joint family property in their hands, but he is entitled as a member of the family to maintenance out of that property; that his position in this respect is analogous to that of widows and disqualified heirs to whom the law allows maintenance because of their exclusion from inheritance and from a share on partition, and the Court may, as in their case, award not only future but also past maintenance so far as it is not barred by the law of limitation and may direct the same to be secured by a charge on the joint family property.

9. The right to maintenance of an illegiti mate son of a Sudra was here recognized on the ground that he was a member of the joint family. Their Lordships however ex pressed no opinion on the question whether an illegitimate son would have a right to maintenance out of joint family property if the father left separate property or if such property was not sufficient for his maintenance. Until 1888 it was accepted that the Mitakshara did not permit the holder of an ancestral impartible estate to alienate it without regard to the interests of the joint family, but in that year in 15 IA 51 : 10 All 2725 the Privy Council held that there was a right of alienation under the Mitakshara where there was a custom of primogeniture. It was said that the eldest son did not become a cosharer with his father in the estate. In 26 IA 83 : 22 Mad 3836 which is known as the first Pittapur case, and in 54 IA 289 : 54 Cal 9557 the Privy Council held that the holder of an impartible zamindari had the right to alienate it by will in the absence of a custom to the contrary. The first Pittapur case resulted in the passing of an Act called the Madras Impartible Estates Act, 1902, to restrict the powers of alienation. This Act was replaced by the Madras Impartible Estates Act 1904, which declares certain estates in this Presidency to be impartible—the Venkatagiri estate is one of them—and provides that the proprietor of an impartible estate shall be incapable of alienating it or binding it by his debts beyond his own life time, unless the alienation shall be made or the debt incurred under circumstances which would entitle the managing member of a joint Hindu family, not being the father or the grand father of the other coparceners, to make an alienation of the joint property or incur a debt binding on the shares of the other coparceners inda pendently of their consent. The Act also declares what are permissible alienations. It is not necessary to consider the provisions of the Act in this respect.

10. All that need be said is that the decisions in 10 All 272 and the first Pittapur case, 22 Mad 383, are no longer effective in this Province so far as the estates mentioned in the Act are concerned. By the Madras Impartible Estates Second Amendment Act, 1934, Ss. 9 to 15 were added to the Act of 1904. S. 9 mentions the persons who are entitled to maintenance out of an impartible estate governed by the Act. The respondents do not come within the Section, but S. 12 declares that nothing contained in the Act shall affect the right to maintenance out of an impartible estate and the income thereof, of any other relations of the proprietor or any previous proprietor under any law or custom for the time being in force. Therefore the Act leaves untouched any rights which the respondents may have under Hindu law. In fact no contention to the contrary has been raised. In 45 IA 148 : 41 Mad 7788 which is known as the second Pittapur case, the Judicial Committee considered the right to maintenance out of an impartible estate. The plaintiff had been adopted by the previous holder of the Pittapur zamindari. The late Rajah died leaving a will under which he bequeathed the estate to the defendant who claimed to be his aurasa son. The plaintiff did not admit that the respondent was the son of the late Raja and averred that the estate had been the joint property of him-self, his father and the late Raja. On this basis he claimed to be maintained out of the estate. His claim was, however, disallowed. Lord Dunedin who delivered the judgment of their Lordships observed that the right to maintenance out of an impartible estate, so far as founded on or inseparable from the right of coparcenary began where coparcenary began and ceased where coparcenary ceased. An impartible zamiru dari was the creature of custom, and it was of its essence that no coparcenary existed. This being so, the basis of the claim was gone, inasmuch as it was founded on the consideration that the plaintiff was a person who, if the zamindari were not impartible, would be entitled as of right to maintenance. This proposition did not negative the doctrine that there were members of the family entitled to maintenance in the case of an impartible zamindari. Just as impartibility was the creature of custom so custom might and did affirm a right to maintenance in certain members of the family. The Board considered that the right of sons to maintenance in an impartible zamindari had been so often recognized that it would not be necessary ta prove the custom in each case and expressly approved of the following passage from the judgment of the Calcutta High Court in 5 Cal 256 at page 259:

We can find no invariable or certain custom, that any below the first generation from the last. Raja can claim maintenance as of right.

11. It was not necessary, however, for the-purpose of deciding the second Pittapur case to decide whether the right to maintenance of junior members of the family depended upon custom or to what extent custom had been proved and this was recognized in the next case to which I shall refer. In 48 IA 195 : 43 All 22810 which, was decided three years after the second Pittapur case, the Judicial Committee had to consider the question of succession to an ancestral impartible estate in a joint Hindu family governed by the Mitakshara and it was held that succession followed the ordinary rule, the eldest member of the senior branch succeeding in preference to the direct lineal descendants of the common ancestor if the latter were more remote in degree. The judgment was delivered by Lord Dunedin and to use the language of Lord Blanesburgh in 61 IA 286 : 56 All 46811 it definitely negatived the view that the decisions in 10 All 272 and the first Pittapur case were destructive of the doctrine that an impartible estate could be in any sense joint family property, a view apparently implied in these cases. It was recognized that an impartible zamindari could be the ancestral property of the joint family, but the person “to occupy the gaddi” was the eldest of the senior branch. In the course of his judgment Lord Dunedin referred to the second Pittapur case in these terms, page 211:

Turning next to 41 Mad 778 it must be always remembered that the claim for maintenance as put forward was made, not against the head of the family of which the claimant was a member, but against the donee, who on the claimant's own allegation was a stranger to the family. It obviously could not, therefore, succeed unless it was of the nature of a real right. Now, it could only be of the nature of a real right, no proceedings having taken place before the estate got into the hands of the donee, if the maker of the claim had before that event been a person who was in some way an actual co-owner of the estate, and any observations which go to the question of maintenance apart from the question of real right may be treated as obiter dicta.

12. There is here a statement by Lord Dunedin himself that his observations in the second Pittapur case which go to the question of maintenance apart from the question of real right might be treated as obiter dicta. Lord Dunedin in the course of his judgment referred to the right of junior members of a joint family ruled by the Mitakshara law down to three generations from the head of the family to maintenance until partition takes place. He also referred to those persons who by reason of personal disqualification are not allowed to inherit but are given maintenance in lieu, the idiot, the blind from birth, and the mad man and to the class which is entitled to maintenance on the ground of personal relationship, namely the widow, the parent and the infant child. It would appear that in using the words “apart from the question of real right” Lord Dunedin had in mind such rights as these. The judgment clearly recognized that an impartible zamindari could be regarded as the ancestral property of the joint family and therefore negatived the statement in the second Pittapur case that it was of the essence of an impartible zamindari that no co-parcenary existed.

13. The question of the right to maintenance out of an impartible estate was raised in 54 Cal 955. In this case the respondent brought a suit against the appellant claiming an estate known as the Dalbhum Raj and mesne profits, the claim being made under the will of the last holder. The family was undivided and governed by the Mitakshara. The estate was impartible and there was a custom of lineal primogeniture. The trial Court and the Calcutta High Court on appeal declared the respondent's title under the will, but held that the appellant who was a member of a junior branch of the family was entitled to maintenance out of the estate at the rate of Rs. 1200 per mensem. Both parties appealed to the Privy Council which dismissed the appeal by the appellant, but allowed the respondent's appeal on two grounds, first on the ground that the maintenance of the appellant and his family was already provided for by a khorposh (maintenance) grant of certain villages to his predecessors, which villages were still in his possession; and secondly on the ground that he had failed to establish a right to maintenance by custom or relationship or in any other way. The second ground was based on the remarks of Lord Dunedin in the second Pittapur case without reference to what was said in 43 All 228. The question was also referred to in 59 IA 331 : 59 Cal 139912 where Sir Dinshah Mulla in delivering the judgment of the Board said that in the case of ordinary joint family property the members of the family had (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance and (4) the right of survivorship. The first of these rights could not exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second was incompatible with the custom of impartibility, as laid down in 10 All 272 and the first Pittapur case and “so also the third, as held in the second Pittapur case.” To this extent the general law of the Mitakshara had been superseded, and the impartible estate, though ancestral, was clothed with the incidents of self-acquired and separate property, but the right of survivorship was not inconsistent with the custom of impartibility, and still remained. Here again the second Pittapur case was followed without discussion.

14. If the question, whether the respondents are entitled to maintenance under Hindu law is to be governed by the judgments in the second Pittapur case, 54 Cal 9557 and 59 Cal 1399 the answer must be adverse to them, but it is said that in its judgment in 56 All 468 the Privy Council has restated the law with regard to maintenance and that the earlier cases which I have just mentioned are no longer binding on the Court in this connexion. This statement appears to be well founded. In 61 IA 286 Lord Blanesburgh, after stating that the judgment of Lord Dunedin in 43 All 228 had definitely negatived the view that the decisions of the Board in 10 All 272 and the first Pittapur case were destructive of the doctrine that an impartible zamindari could be in any sense family property, went on to observe (page 302):

One result is at length dearly shown to he that there is no reason why the earlier judgments of the Board should not be followed, such as, for instance the Chellapalli case, 27 IA 161 : 21 Mad 117,13 which regarded their right to maintenance, however limited, out of an impartible estate as being based upon the joint ownership of the junior members of the family with the result that these members holding zamindari lands for maintenance could still be considered as joint in estate with the eamindar in possession.

15. Later in the judgment (page 303) Lord Blanesburgh said:

The recent decisions of the Board constitute a further landmark in the judicial exposition of the question at issue here. While the power of the holder of an impartible raj to dispose of the same fay deed (10 All 272) or by will (the first Pittapur ease; 51 Cal 955) remains definitely established, the right of the junior branch to succeed by survivorship to the raj on the extinction of the senior branch has also been definitely and emphatically re-affirmed. Nor most this right be whittled away. It cannot be regarded as merely visionary. As was pointed out in 38 All 590,14 when before the Allahabad High Court, the junior members of a great zamindari enjoy a high degree of consideration, being known as babus, the different branohes holding babuana grants out of the zamindari. Their enjoyment of these grants is attributable to their membership of the joint family, and until the decisions above referred to beginning in 1888 supervened, they had no reason to believe that their right of succession were being imperilled by their estrangement from the zamindar in possession. Great caution must therefore be exercised in attributing any special consequences to conduct only significant in the light of these decisions now explained.

16. I read Lord Blanesburgh's judgment in this way. It recognizes that the power of the holder of an impartible estate to dispose of it by deed or will has been definitely established, but at the same time it recognizes that an impartible estate can be regarded as joint family property, giving the members of the family a right to maintenance and a right in the junior branch to succeed by survivorship to the estate on the extinction of the senior branch and it leaves the way open to the Court to follow the decisions of the Board earlier than the second Pittapur case on questions relating to maintenance. The reference by Lord Blanesburgh to 24 Mad 147 is particularly significant. This was a consolidated appeal arising out of two separate suits for maintenance filed in the District Court of Kistna against the zamindar of Chellapalli by his two younger brothers respectively. The District Judge held that they were entitled to maintenance and to recover or rears for a period of 12 years. This Court on appeal agreed with the District Judge except as regards the arrears of maintenance. It held that the arrears were not claimable, except a certain sum received by the plaintiffs under a previous order of the Court and reduced the amount of arrears from Rs. 56,000 to Rs. 23,000. In delivering the judgment of the Judicial Committee Sir Henry De Villiers said:

Their Lordships folly agree with the High Court that the family of the parties to the present action has not become a divided one in consequences of the proceedings in the previous suit to which reference has already been made. It is true that in that suit a decree was made for the partition of a portion of the family property, but it was a very inconsiderable portion, and had no relation whatsoever to the zamindari estate. As to the zamindari estate, this Board held that it was impartible, and the consequence is that the plaintiffs, as the younger brothers of the zamindar, retain such right and interests in respect of maintenance as belong to the junior members of a raj or other impartible estate descendible to a single heir: see 10 All 285. In regard to the amount of maintenance, the Judges of the High Court very properly refused to disturb the finding of the District Judge whose experience in the District they fully recognize.

17. The reference to maintenance to be found at p. 62 of 15 IA 51 consists of a quotation from the judgment in 5 IA 6115 where mention is made of younger brothers “taking such rights and interests in respect of maintenance and possible rights of succession as belong to the junior members of a raj or other impartible estate descendible to a single heir.” The Board held that the plaintiffs had a right to maintenance and restored the finding of the District Judge that they were entitled to payment of the amount of arrears for 12 years. There is no reference to custom in the judgment and the decision can only be regarded as being based on the principles of Hindu law. The judgment in 53 All 468 is definite in regarding the right to maintenance of junior members of the family as being based upon joint ownership of the estate. But what significance is to be attached to the words “however limited” which Lord Blanesburgh used in conjunction with the right to maintenance? Where the Hindu law gives a right to maintenance, the right can only be affected by custom and I do not regard these words as recognizing any limitation in principle, but only a possible limitation in a particular case. Impartibility arises out of custom, but with the greatest respset to what has been said to the contrary I do not regard a custom of impartibility as in itself destroying the right of the junior members of the family to maintenance out of the family estate while it remains in the family. The fact that a family from generation to generation has agreed that the ancestral estate shall be held according to the law of primogeniture and thereby has allowed a custom of impartibility to arise does not in itself imply the abandonment by the junior members of their right to maintenance out of the estate. There is a vast difference in the giving up of a right, to partition from the giving up of a right to maintenance. Impartibility may lead to enhancement of the prestige of the family I and the preservation of the ancestral estate, but loyalty to the family does not demand: the giving up of a right to maintenance. To deprive junior members of a joint Binda family whether partible or impartible of the right to maintenance there must, it seems to me, be a custom to that effect. Of course if the estate lawfully passes into the hands of strangers the right to maintenance out of the estate will necessarily cease.

18. There is here no custom depriving junior members of the Venkatagiri family of the right to maintenance and it cannot be denied that the respondents are members of the family. The decision in 55 Mad 1 definitely establishes this. In these circumstances I consider that the respondents are entitled under Hindu law to maintenance out of the estate, if provision has not already been made for them. Has provision then been made for them? In my opinion it has not. It is true that under the deed of 8th April 1889, their father received large sums of money, but these were not paid to him for his maintenance or the maintenance of his family, nor has it been so suggested. Provision was made for maintenance in another part of the document but the provision was limited to him and this legitimate descendants. It is next to be considered whether the fact that their father left a large estate makes any difference to the respondents' claim. In deciding 55 Mad 1, the Judicial Committee left this question open and no Indian authority has been quoted to us on the subject. The question must then be decided on principle. If a person is entitled in law to be maintained out of an ancestral estate the possession of private property cannot destroy his right. The fact that he has private means may have bearing on the amount to be paid out of the estate, especially if the estate is a poor one, but that is all. The parties to the deed of 8th April 1889 in fact recognized this as in addition to the large sums which the younger brothers received under the deed separate provision was made in it for their maintenance. Accordingly, I hold that the fact that their father left them a large fortune does not deprive the respondents of their right to maintenance out of the Venkatagiri Estate.

19. It remains to be considered what allowance should be granted to the respondents and whether they are entitled to be paid arrears. The Subordinate Judge considered that if maintenance were payable to the respondents under Hindu law a fitting allowance would be Rs. 250 a month each, being half the amount they would have received had they been legitimate. The decisions of this Court in 17 Mad 16016 and 56 MLJ 673,17 to which the Subordinate Judge has referred, in my opinion correctly state the basis for the assessment of the amount. It is not a matter of granting a compassionate allowance. The amount must be fixed with regard to the position of the family. An illegitimate son will not in the ordinary course occupy so prominent a position as a legitimate son and the rule that an illegitimate son of a Sudra is only entitled to half of what a legitimate son is entitled to in his father's estate may be taken as a guide in fixing the amount of his allowance for maintenance. I see no reason why the conclusion of the Subordinate Judge should not be accepted and therefore I concur in his finding that a reasonable allowance is Rs. 250 per mensem for each of the respondents. I also agree with the Subordinate Judge that the respondents are entitled to an allowance for maintenance from the date of their father's death. That date is within the period of limitation and the fact that they were ignorant of their rights—it has not been suggested that their explanation of the delay in the filing of the suit should not be accepted—is not sufficient reason for depriving them of what has accrued. In 24 Mad 147 it was observed that if the defendant had been misled into the belief that the claim for maintenance had been abandoned and had in consequence not set aside any portion of his annual income to meet the claim he might have had a good defence to the action, but without some such ground of defence it was impossible to hold that the younger brothers had forfeited an undoubted right merely because they had in the first instance been advised to file a wrong suit and had not claimed maintenance as it fell due. In the present case the appellant does not say that he has been misled by the delay and the defence has been confined to denying the right of the respondents to claim maintenance.

20. It follows that in my opinion the decree of the trial Court should be varied by the reduction of the aggregate monthly allowance from Rs. 1000 per mensem to Rs. 500 per mensem and that the arrears should be calculated at the rate of Rs. 500 and not Rs. 1000 per mensem. It is conceded that if the respondents are entitled to a decree they are entitled to have the amounts payable to them charged upon the estate, and an order to this effect will be embodied in the decree. I consider that the respondents are entitled to costs in the lower Court and in this Court based on the amount awarded to them under the decree of this Court, they having succeeded on the Hindu law issue. The appellant has succeeded on the issue with regard to the deed and the appeal has resulted in a substantial reduction of the amount payable. In these circumstances, I hold that he is entitled to costs in this Court based on the difference in the amount payable under the decree of the trial Court and the amount payable under the decree of this Court.

Krishnaswami Ayyangar, J.:— I con our in the judgment just now pronounced by my Lord the Chief Justice, which I have had the advantage of reading beforehand. In view however of the importance of the questions raised, I would with respect add a separate judgment of my own, embodying my reasons for agreeing with the conclusions arrived at by my Lord. Of the points raised in the appeal, two alone appear to my mind to be the most material, and to them accordingly I shall confine my observations. The first of them is the correct interpretation of the deed of settlement. The whole controversy on this point turns on the meaning of the expression purusha santhathi, occurring in that part of the deed where provision is made for payment of a maintenance allowance to the descendants of Sri Venugopal. The respondents are his dasi-putras, i.e illegitimate sons according to Hindu law. The controversial sentence is as follows:

After the life of the said Sri Venugopala Krishna Yachendrulu, his purusha santhathi, shall, in perpetuity, be paid the same allowance amount, that is, at the rate of rupees one thousand (Rupees 1000) per month in the above manner.

21. Purusha santhathi is a Sanskrit expression, but commonly used in its original sense in most of the vernaculars of the Presidency. It is a compound of two words-purusha meaning male, and santhathi meaning issue, progeny or descendants. The expression may accordingly be rendered into ‘male descendants’ or ‘male issue’. So far, both sides agree; but they vitally differ on the question whether the expression comprehends legitimate issue only, or whether, as held by the learned’ Subordinate Judge, it includes both legitimate and illegitimate issue. In spite of the somewhat emphatic language in which the Subordinate Judge has expressed himself we have been obliged on a careful consideration of the document in the light of the-surrounding circumstances, to differ from him. It is complained, and I think rightly, that the learned Judge has paid undue and unjustifiable attention to the heirship of illegitimate sons under Hindu law, instead of regarding it as one only of the several circumstances to be taken into account for ascertaining the intention. The true officer of all construction is to discover the intention of the parties, as expressed by the words used. Where those words are not sufficiently clear in themselves to fix the intention, the circumstances that surrounded the transaction, may and ought to be resorted to, to see if what is not apparent in the document in itself, is made clear by a knowledge of those circumstances. The law by which the parties are governed may afford a guidance, as with its aid, it may be possible to ascertain what the executant was aiming at. But caution is necessary in its use, in order to avoid over emphasizing what is after all but one of the several factors to be considered. One may even say that by itself, it is not of much value. In fact its significance, where it is of value, lies in the light it sheds on the motives and objects, the aims and purposes which prompted the execution of the document, or the choice of the objects of the executant's bounty. As observed by the Privy Council in 2 IA 7 at page 14 : 22 WR 40918:

In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property.

22. A knowledge of the law is valuable because it may afford a knowledge of the notions and wishes and through them lead to a discovery of the intention of the parities. In an early decision of the Board, 6 MIA 526 at pp. 550, 551 : 4 WR 11419 it was observed:

In determining that construction what we must look to, is the intention of the testator; The Hindu law, no less than the English law, points to the intention as the element by which we are to be guided in determining the effect of a testamentary disposition; nor, so far as we are aware, is there any difference between the one law and the other, as to the materials from which the intention is to be collected. Primarily, the words of the will are to be considered. They convey the expression of the testator's wishes; but the meaning to be attached to them may be affected by surrounding circumstances, and where this is the case, those circumstances no doubt must be regarded. Amongst the circumstances thus to be regarded, is the law of the country under which the will is made and its dispositions are to be carried out. If that law has attached to particular words a particular meaning, or to a particular disposition, a particular effect, it must be assumed that the testator in the dispositions he has made, had regard to that meaning or to that effect, unless the language of the will or the surrounding circumstances displace that assumption.

23. That it is wrong to lay too much emphasis on the law as such is conveyed clearly enough in the language used by their Lordships in the Balrampur case 41 IA 1 : 36 All 10120 where again their Lordships observe:

The matter for decision in this case being the construction of a codicil to the Maharaja's will, the point is not what is the strict rule of the Hindu religion, or the strict rule of the Chhattri caste, (and if I may with respect add, the strict rule of the Hindu law either) but this, namely what were the wishes and the intentions of the testator as revealed by the language of that instrument, viewed through the light of surrounding circumstances.

24. It may happen that the executant in a particular case was anxious to perpetuate a rule of succession according to a particular system of law, and where this is the case, the rules of that law may assume paramount importance. This is exactly what occurred in the case cited as the following further observations make it clear:

The testator must have had in mind some law or rule which would apply to fix the succession. What law could this high caste Hindu possibly have had in mind for such a purpose other than the Hindu law?

25. The italics are mine. The rule of Hindu law which excludes illegitimate sons from heirship in the case of twice-born Hindus was held in this case to determine the meaning of the word (aulad=issue) in a gift to an illegitimate son and his aulad. Their Lordships explain the reason for their decision as follows:

It would be strange indeed if the man who had made it his special care to treat this son of his as a Hindu (he was in fact an illegitimate son by a Mahomedan mistress) and had succeeded in marrying him to two high caste women, should intend or desire, whatever might be the strict letter of the law, to place the offspring of these unions on the same level as the illegitimate children of his son's Mahomedan mistress and make them all equally the objects of his bounty.

26. From first to last, and all throughout, the quest is to be for the intention behind the language, whatever the aids resorted to. In fact, even in the Balrampur case itself the testator was conducting himself in a way contrary to the injunctions of the Hindu law in that he treated and wanted others to treat, his illegitimate son by a Mahomedan mistress as if he were a legitimately born Hindu, and it was this conduct which primarily disclosed his true intention. Can it be said that the Hindu law of illegitimate succession furnishes in this case a clue to the intention behind the use of the expression purusha santhathi? Where Hindu law and Hindu sentiment coincide, the law would of course be of help. Where they diverge however it is the Hindu sentiment that will rule even to exclusion of the law. The truth of the matter is that there can be little room for doubt that the ordinary notions of a Hindu towards irregular unions and the issue of such unions are not different from those of any other community. There is no denying it that the Hindu religion does not countenance extra-marital relations, and the Hindu law itself looks down with disfavour on illegitimate children, assigning to them only a subordinate rank among the Sudras, and denying heirship altogether among the superior castes. It is therefore to the sentiments generally prevalent in the society to which the executant belongs, more than to the law that regard should be had in questions of this kind. Illicit relations are, until callousness overtakes the parties, carried on the sly and rarely if ever owned, much less paraded in the public eye. The higher the social rank, the greater the care with which the evil is thrown over them. It is one thing to provide for the issue of a lapse that has occurred. Duty and honour may dictate it. Love and affection, more especially if there be no legitimate children may even prompt it. But I refuse to believe that a member of the Hindu community, nobleman or commoner, would contemplate with equanimity the possibility of future lapses either in himself or in his descendants and sit down on a solemn occasion to enact a scheme of succession admitting future illegitimate issue to its benefit. Yet, this is in effect the logical consequence of the view taken by the learned Subordinate Judge. He sums up the position in these words:

The position therefore to my mind seems incontrovertible that the term santhathi when it is used in a document to which Sudras are parties intending to create thereby rights in favour of their santhathi, within that expression are comprehended both the legitimate and the illegitimate santhathi. In other words, purasha santhathi of Raja Venngopal would include his illegitimate sons, viz. the plaintiffs.

27. The vice of the argument lies in attributing to the members of this proud ancient family of hereditary noblemen, an intention out of keeping with their lineage and social standing, and out of joint with the solemnity of what was in all probability the first occasion when they were recording a family usage of impartibility at a family council at which all members of the family including the old and respected father Sri Kumara Yachama were present. I must positively decline to accept the proposition of the Subordinate Judge that so far as the generic term santhathi is concerned, which means issue, children or descendants, it must be held when used by Sudras to include children both legitimate and illegitimate. It would be almost grotesque to imagine that the executants of this settlement foresaw the likelihood of illegitimate issue being begotten not only by the adult brothers, one of whom was yet unmarried, but also by Raja Venugopal who was at the time a boy of but tender years. It is satisfactory however to note that this suggestion was not advanced either in the Court below or here. As I have said, the occasion was scarcely of a kind at which a question of illegitimate succession is likely to have been thought of or provided for. It is perhaps worth while in this connexion to mention a circumstance not wholly devoid of significance. Sri Kumara Yachama, it is said, had illegitimate offsprings, but the document is entirely silent about them. If a provision for their maintenance had been made, it must have been made privately, and if not, it must have been reserved for private settlement later. Delicate personal affairs of the kind would scarcely be dragged into public view, or dealt with at a general settlement of family matters. It is also not without significance that marriage portions suitable to their condition in life have been separately provided for in the settlement deed for the two brothers Sri Rajah Venkata Krishna, and Sri Raja Venugopal who were yet young and unmarried, with a view to their entering into lawful wedlock in due time. If I may say so with respect, I fully endorse the opinion expressed by Krishnan Pandalai J. in AIR 1933 Mad 659 which I think furnishes the basis for a correct approach to the question. I may add that the views expressed by that learned Judge are so much in accordance with prevailing sentiment, that they merited better consideration at the hands of the learned Subordinate Judge than he has chosen to give them.

28. Even apart from these considerations, I agree with the learned Chief Justice that there is sufficient in the language of the document itself, to hold that the words purusha santhathi which are by no means to be regarded as terms of technical legal import, were not intended to be used in a comprehensive sense so as to include both legitimate and illegitimate children as held by the Subordinate Judge. The Subordinate Judge seems to suggest that there is a distinction in the mode of construction between a will and a settlement. If I understand him aright, he seems to be of the opinion that the deed has to be scrutinized not from the background of approach pro per for a gift or a will, but rather on the footing that it evidences a recognition by the eldest brother of preexisting rights in the younger in consideration of the latter in their turn conceding the impartibility of the estate; in other words, they are not to be regarded as mere volunteers but rather as persons possessing definite rights which the eldest brother was bound to respect. Assuming this to be right, I still fail to under, stand how this aspect of the matter provides “a definite point from which we have to start.” It is unfortunate that the learned Judge has not been more explicit, and we are consequently obliged to labour more or less in the dark as to the precise nature and effect of the distinction which he seems to have had in mind, and the manner in which that distinction has influenced his judgment. For myself I cannot see why the younger brothers should be regarded as having made a great concession, as it is improbable to a degree, that they or any of them could have seriously believed in the partibility of the estate. In fact, as the deed itself shows, they meekly acknowledged the impartibility of the estate receiving only a share in the cash and jewels, a sum of money for the purchase of a residential house, an inconsiderable marriage provision and a moderate maintenance allowance. I am unable to see how the fact that it is a deed of settlement and not a will or a gift advances the case of the respondents. I do not know, I can only suspect it, if the learned Judge by his reference to rights and obligations in this context is laying a foundation for the view that the brothers were in a position to extract and did in fact extract from the Rajah a recognition of a heritable right in the allowance, similar in character and descendibility, to ordinary heritable property, and capable therefore of being taken by issue legitimate as well as illegitimate. If so, I am afraid he must have carried a second error into the construction of the document.

29. Now, coming to the words purusha santhathi themselves. The word santhathi would ordinarily denote legitimate progeny only. If a sufficient expression of intention to the contrary is contained in the document, or is capable of being otherwise collected from it, the word will not by itself exclude the possibility of illegitimate issue coming in, as there is nothing in its etymological sense against such an extension. In current language however, when a person, be he a Sudra or a twice born, uses the word he would rarely indeed intend it to denote illegitimate issues. The prima facie meaning of santhathi as of “children” being legitimate children; that meaning is the one to be attached to it in the spoken as well as in the written word. Where however the word is used as a word of limitation, heirs in general would be indicated by it, and an illegitimate son where he happens to be an heir will no doubt come in. In other words, law will bring in the illegitimate son as an heir, if a party is found to have left the law to regulate the succession, and does not trouble to regulate it himself. The decisions noticed by the learned Subordinate Judge in this context are of little value as in those cases the word has only been held to include collaterals or heirs in general, though santhathi in its literal sense may refer to lineal descendants. No decision has been cited in support of the contention that santhathi includes illegitimate descendants, in the absence of something definite in the deed or in the surrounding circumstances showing that it was the intention of the executant to use the term in that special sense. In other words the prima facie meaning cannot be made to yield to and make way for another and a possible meaning in the absence of an overriding context or of surrounding circumstances of sufficient strength. But that is not the case here. On the contrary, it is the primary meaning that I think holds the field to the end. So much for the meaning of the words without reference to the context.

30. A consideration of the language of certain of the clauses of the deed also leads to the same conclusion. In the first place, in no part of the document is there anything against the natural prima facie meaning of the word. What there is, tends only to support it. In the operative portion of cl. 2 of the deed, the words purusha santhathi are used to indicate the devolution of the estate after the eldest brother Sri Raja Bajagopala, his son and son's son, and it is in the highest degree unlikely that any but legitimate issue would have been here envisaged or meant. As I have said it is difficult to imagine that the members of this family would have contemplated the possibility of the failure of legitimate issue in all the four branches. If in this clause purusha santhathi bears the meaning of legitimate issue, as I think it did, the same meaning should be attributed to the expression in other parts of the deed as well. It would be wrong to give different meanings to the same expression in different parts of the same document, unless the context demands it. It will be seen however that the contrary intention is plainly shown by two other clauses to be found later in the document. In referring to the events on the happening of which the estate is to devolve on the next senior line, it is worthy of note, that the devolution is made conditional on the absence of the aurasa or the adopted son only, suggesting that the existence of an illegitimate son would not make a difference; whereas if the respondents' argument is right, the collaterals cannot succeed to the estate if there is in existence an illegitimate son. The learned Judge considers that the use of the word “members” in the clause “subject only to the condition of paying allowance to the other members of our family suitably to their respective status” suggests the inclusion of illegitimate children. Illegitimate sons may be members of the family according to law, but there does not appear anything in the context to suggest that the word “members” was consciously used or could have been used in the document so as to include illegitimate sons. Here again the learned Judge is obsessed with the membership of the illegitimate son under the law, and has failed to address himself sufficiently to the question of what the intention of the parties is likely to have been.

31. It is doubtful if they were cognizant of the membership theory at all which does not appear to have been clearly grasped even by the Courts at the date of the document. Neither party has suggested that the assistance of a trained lawyer was requisitioned for the preparation of the document and there is no reason to think that the word “members” while it may include females, was intended to bring in illegitimate offspring. It is equally profitless to regard the reference to the rules of Hindu law in certain passages as lending support to the contention that except in regard to the amount, the allowance was to follow the line of descent laid down by that law. This is merely to give effect again to the law, and not to the intention. It is with the portion of cl. 5 extracted in the beginning of this judgment that we are directly concerned. On that clause the respondents almost solely found their case in support of a construction favourable to them. After setting out correctly the rule governing the construction of the documents, the Sub ordinate Judge asks himself the question whether there is so strong a probability of intention to exclude or not to include, the illegitimate sons of the junior brothers, or that a contrary intention cannot be sup posed, because we are now discussing the question on the footing that the expression “purusha santhathi” ‘prima facie connotes both legitimate and illegitimate child ran’. The italics are mine. He thus starts with & wrong premise, for as I have endeavored to explain, this is neither the, prima facie meaning of the expression as ordinarily spoken or understood, nor do the surrounding circumstances, so far as I can see, point to this being the sense in which the parties could be deemed to have used it. In fact he assumes that the words include illegitimate children, and proceeds to examine the language of the document for the purpose of seeing if there is anything in it against such a predetermined meaning. On account of this wrong approach, the judgment loses a great deal of the value that would otherwise belong to it.

32. What appears to be a decisive argument against the Subordinate Judge's view is contained in two other clauses of the deed, where the words purusha santhathi are followed by the expression either by way of aurasa, or by way of adoption. In the one, it is provided that on the death of any male member in any of the three branches without purusha santhathi either by way of aurasa or by way of adoption, the allowance should go to the gnatis nearest to him in his own branch according to Hindu law. By the second, it is directed that on the extinction of any of the three branches by the total absence, (i.e completely) of purusha santhathi either by way of aurasa or by adoption the allowance which was being paid to that branch should be stopped to the extent of a half, a half alone, namely Rs. 500 being payable as maintenance for life to the widow or widows of the last person in the branch who died without purusha santhathi. The italicized words “either by way of aurasa or by way of adoption” in those clauses do seem to explain when, according to the deed, a person is to be regarded as dying without purusha santhathi. That event in the language of the parties them, selves happens, when he should the with, out male issue either by way of aurasa or by way of adoption. In aurasa we have once again a word whose strict etymological import is perhaps wider than its ordinary or even legal meaning. The etymological meaning is “produced from the breast, born of oneself, or legitimate.” But whatever its literal meaning, it is clear that both Manu and Yagnyavalkya define the word as denoting the son born of lawful wedlock only. According to Manu Chap. 9, 166:

Chapter 2, 128

Whoever is begotten by a man himself on a lawfully married (purified by marriage) wife of his own, he should be known as an aurasa son regarded as the foremost among sons.

33. Yagnyavalkya is still more explicit. An aurasa (son) is he who is produced by a Dharma Pathni, (lawfully wedded wife). This is in fact how the word is also commonly understood: 4 Bom 3721 and 41 Mad 44.22 All doubt is completely dispelled by the use of the word along with and in contrast to, an adopted son in the phrase “by way of aurasa or by way of adoption.” In this collocation, aurasa can only mean legitimate son, and this is not disputed. If this view is correct, it would necessarily follow that the existence of an illegitimate son notwithstanding, the allowance would, in the one case pass over to the nearest collaterals (gnatis) in the branch, and in the other be partially stopped, if there be neither a legitimate nor an adopted son. The illegitimate son is thus left out of account, and the whole scheme of devolution is built up, it seems to me, by taking into account legitimate descendants only. In the light of this explanation which is found in the document itself, it is not permissible to overlook the meaning suggested by it in favour of any other meaning. The learned Judge does not deal with this point directly but goes on to consider the meaning of the word ‘gnatis’ occurring in the first of these clauses which word according to him, includes illegitimate sons also. He than goes on to hold that on failure of the legitimate or adopted son, the gnatis including the illegitimate son would taka the allowance, and thus the illegitimate son is let in after the aurasa and the adopted sons by the use of the word gnati. Here again the learned Judge has not taken the ordinary colloquial meaning of a word in constant use. Gnati is rendered as agnate, which term again the official interpreter rightly explained as referring to collateral agnatic relations. It is unusual to refer to a brother as gnati in a joint family though again in Sanskrit the word does include a brother also. The question in reality is not whether an illegitimate brother is a gnati or not for purposes of succession, but whether the word is used in that unusual sense in the deed. Before us however the argument; mainly was that this clause has no application, as the case is governed by the earlier clause referred to already, but we are unable to shut our eyes to an interpretation which the document itself furnishes.

34. As regards the second of the clauses above referred to the extinction of the branch takes place by the total cessation of male descendants either by way of aurasa or by adoption, and, it is to be noted, in spite of the possible existence of illegitimate sons as in the previous clause. On this clause two answers are attempted in the judgment of the Subordinate Judge, both of which however appear to be labored and unconvincing. He thinks that the use of the word ‘completely’ which is the same as the word ‘total’ in the official translation shows that the use of the words ‘aurasa’ or ‘adopted’ was merely illustrative and so they do not exclude the illegitimate issue. He also goes back to cl. 1, where the ex pression by way of aurasa or by adoption does not accompany the words purusha santhathi and says:

Mr. Srinivasa Iyengar, plaintiff's counsel, further argued that if the intention was to restrict the applicability of the term purusha santhathi only to legitimate progeny, either born or adopted in cl. 1 itself which contains the disposition to purusha santhathi of Raja Venugopal the qualifying words aurasa or adopted would have been used in that clause alone. This certainly is an argument the force of which it is difficult to minimize.

35. For my part I am unable to see much force in that argument. Indeed in the light of the knowledge gained by a consideration of the later clauses, it is easy to understand the true meaning of the words purusha santhathi, wherever they occur, even if they are not accompanied by the phrase aurasa or adopted son. The earlier clause would thus receive a meaning to which no reasonable exception could be taken. I may per haps in this connexion refer to the rule of construction under the English law stated by Cotton L.J in a form (1880) 15 Ch D 19823 at p. 205 specially appropriate even to another and a different system which unlike that system, recognizes a limited right of heirship in the illegitimate son. He says:

To take a case out of the common rule that only legitimate children can take under a gift to ‘children’ there must be on the face of the will such a strong probability of the testator's intending to include illegitimate children that a contrary intention cannot be imputed to him.

36. If we substitute purusha santhathi for ‘children’ in this passage, we have a statement of the law which eminently fits into this case. I do not understand the Privy Council as laying down the law differently in 36 All 101 at pp. 121, 122 where they meant, I think, merely to illustrate the proposition that the presence of special circumstances may lead to a different conclusion. Section 100 of the Succession Act, may also be remembered in this connexion. I regret I am unable to attach weight to most of the considerations which have weighed with the learned Subordinate Judge in his construction of the deed of settlement, and accordingly feel constrained to differ from him. The deed does not, and I think, was not intended to confer rights on illegitimate sons, whose rights if any must be Bought elsewhere, viz. the Hindu law.

37. The second contention urged by the learned counsel for the respondents is that under the Hindu law and apart from the deed of settlement, the respondents who are the illegitimate sons of Sri Raja. Venugopal are entitled to maintenance out of the impartible estate. The learned Subordinate Judge did not accede to this contention. But as we are of a different opinion, it is necessary to go into this question in some detail. The subject is one of considerable complexity and difficulty on account of the vicissitudes which have attended the course of decisions regarding the basic principles of the law relating to impartible estates. It is only fair to say that we would have had a great deal of difficulty in arriving at the conclusion at which we have arrived but for the latest pronouncement of the Judicial Committee in 56 All 468. The clear light which this decision has thrown on the subject has dispelled all doubts as to the law that we are bound to apply to the decision of this case. The paternity of the respondents is not now disputed. Nor is it disputed that they fulfil the description of daspi-utras, in Hindu law, capable of inheriting to their putative father Raja Venugopal. The Ven katagiri family of which Raja Venugopal was a member belong to the Velma community, a sub-division of the Sudra caste amongst Hindus. The estate is by custom impartible and descendible to the eldest representative in the eldest line according to the rules of lineal primogeniture. The appellant has conceded that it is held as joint family property, a concession which has been recorded by the learned Judge and not questioned in the appeal. His contention is that under the Hindu law the junior members in a joint family of which the senior member alone is the sole holder of an impartible estate, have no right apart from custom to be maintained out of the estate or its income. Proof of the custom would not, of course, be insisted if the claimant were a brother or son, as in such a case the custom has been so often judicially noticed that it is no longer necessary to adduce proof of it: 41 Mad 778. But if the claimant is a more distant relation, he must, it is argued, make out a custom entitling him to maintenance before he can succeed.

38. The right of illegitimate sons to maintenance out of the partible assets of the joint family to which he belongs has now been finally settled by the decision of the Privy Council in 55 Mad 1. The relevant passage in their Lordships' judgment has been extracted in the judgment of my Lord. That passage, if I may say so with respect, is clear and telling, and has finally set at rest all controversy regarding the jurat basis of an illegitimate son's right of maintenance under the Hindu law. It is now established that right springs out of his membership of the putative father's family, a membership which necessarily/carries with it a legal right to be maintained out of the common assets. Where the family consists of illegitimate and legitimate sons and no collaterals, his rights are higher, but this aspect of his rights is of no materiality in this case. As held in 41 Mad 778, the second Pittapur case, the right of coparceners to maintenance out of the coparcenary property is an inherent quality of that property. What was described in this case as the inherent quality of the coparcenary property as regards a full coparcener has, it seems to me, been extended by 55 Mad 1 to an illegitimate son by reason of his membership of the family, though his membership is inferior to that of a legitimately born son. To this extent the right of the illegitimate son is practically conceded. The Subordinate Judge appears to accept the position so far, for he has said:

If in the present case, the claim for maintenance, let us assume, had been directed against not impartible property but against partible property, then clearly, if the plaintiff's father Raja Venugopal had left no separate property, since he left no legitimate issue (in fact he died unmarried) the plaintiffs would clearly be entitled, according to 65 Mad 1 to maintenance from the defendant who is their collateral, in possession of the joint family property.

39. The qualification mentioned here and having reference to the separate property of the putative father is the matter on which their Lordships did not and were not called upon to express an opinion. This question does arise for consideration in the present case as admittedly the father has died leaving considerable separate property which has passed into the hands of the respondents under his will. It is however difficult to see how this circumstance can operate to deprive them of their right to be maintained out of the estate, if other, wise they have the right. They have the right because they are members of the family, and the right will subsist so long as the membership continues. Neither their status as members nor their right to maintenance which is a consequence of that status can be imperilled by the accident of their coming into possession of the separate property of the father. What was urged was that even if the right be held to exist, yet the very nature of that right is such, that effect should not be given to it where the claimant is well supplied in this regard from other sources. In other words there is no need to maintain persons who are already well maintained by others or from other sources. The correctness of this proposition was examined by this Court in 38 Mad 15324 and 59 MLJ 53125 and the conclusion was reached that it is unsound. Both these cases related to a claim by the widow of a deceased coparcener, but the decision must be held to govern the present case as the basis of the claim whether it is by a widow or by an illegitimate son, is identical. I may also mention that on this point the Subordinate Judge has himself come to the same conclusion. The question then is whether there is any difference in the principle to be applied because it is not partible property but an impartible estate against which the maintenance is claimed. Illegitimacy by itself being no longer after 55 Mad 1, an obstacle to the recognition of maintenance rights, the question narrows itself to this: Is there anything in the nature or incidents of an impartible estate, anything so special and peculiar that it necessarily displaces the junior member's right to maintenance, which is as the Privy Council described it, an inherent quality of common property? The learned Subordinate Judge is of the opinion, that the difficulty lies not in the respondents being of illegitimate descent but in their being beyond the admissible degree of relationship. The contention of the learned counsel for the appellant on this point was almost entirely founded on the decision of the Privy Council in the Second Pittapur Case. According to him this decision of the Privy Council concludes the question against the respondents, and in favour of the appellant. On the other hand it is contended for the respondents, that the authority of this case has been greatly circumscribed, and must now be regarded as confined to the actual decision contained in it and no more.

40. It is therefore necessary to examine the soundness of this argument and to see whether there is in the later cases an exposition of principle at variance with what appears to be stated in the Second Pittapur case. That case related to a claim to maintenance by the son of the adopted son of the last holder of the Pittapur Estate, an impartible zamindary in the Northern Circars. The estate was held by a devises under the will of the last holder who claimed to be the aurasa son. The sonship had been denied by the claimant's father and was also denied by the claimant, and the claim was made to rest on an allegation of co-ownership with the last holder, which was not affected, it was urged, by the estate getting into the hands of a stranger under the will. The claim was rejected. The plaintiff did not attempt to prove that there was any custom affecting this zamindari which enjoined the making of grants to any persons, nor did he put his case on any claim resting on relationship. It was by reference to the general law that he attempted to sustain the claim by suggesting that law cast a real and not a mere personal burden which followed the property into whosoever's hands it passed. This was a patently extravagant proposition as the burden does not become real until the estate is charged by act of parties or by decree of Court. In rejecting the claim their Lordships held, 41 Mad 778, as the concluding paragraph of the judgment shows, that a claim of the kind not based on relationship must fail, quoting the following extract from Sankaran Nair J.'s judgment in the High Court:

The plaintiff does not advance any claim based on relationship. He refuses to admit any relation ship…. As there was no community of interest the property is not burdened with his claim in the hands of a donee.

41. This passage does suggest that their Lordships threw out the claim on both grounds, namely the absence of relationship and the absence of co-ownership. In fact the greater part of the judgment is devoted to the discussion of the question whether there was in law a coparcenary in respect of an impartible estate. At pages 153 and 154 the following observations occur:

It is settled that in an impartible zamindary there is no coparcenary and consequently no person existed who as coparcener could object to alienation of the whole subject by the defacto and de jure holder. It follows that the right to maintenance, so far as founded on or inseparable from the right of coparcenary, begins where coparcenary begins and ceases where coparcenary ceases…. An impartible zamindary is the creature of custom, and it is of its essence that no coparcenary exists. This being so, the basis of the claim is gone, inasmuch as it is founded on the consideration that the plaintiff is a person who, if the zamindary were not impartible, would be entitled as of right to maintenance.

42. These observations, there can be no doubt, prima facie do touch and govern the principle of the law to be applied in the present case and they appear to negative the possibility of a coparcenary in relation to an impartible estate. In fact they embody the logic underlying the decisions of the Privy Council in 10 All 272 and the first Pittapur case and this Court would have been powerless to pass them by but for the later decisions of the Board. Before referring to them, it may not be out of place to remember that it was a new inter, pretation of the law that was ushered in by these decisions. In the second Pittapur case itself it was observed:

It is beyond doubt that the decisions in the Madras Courts prior to the case in 10 All 272 embodied the theory that there was joint property in an impartible zamindary, which only fell short of coparcenary because by custom partition was inadmissible. It is needless to cite or examine the authorities as their Lordships do not apprehend that there is any doubt as to this statement being correct. It will be sufficient to quote a fragment of the decision of the Court of Appeal in that case itself, “It must be conceded that the complete rights of ordinary coparcener ship in the other members of the family to the extent of joint enjoyment and the capacity to demand partition are merged in—or perhaps to use a more correct term, subordinated to—the title of the individual member to the incumbency of the estate, but the contingency of survivorship remains along with the right to maintenance in a sufficiently substantial form to preserve for them a kind of dormant co-ownership.”

43. This change is also noticed in 31 IA 1 at p. 9 : 27 Mad 13126 where again their Lordships observed that:

It was the accepted law in Madras that the holder of an impartible zamindary, who was himself a member of an undivided family, could not alienate or incumber the corpus of the estate so as to bind his coparceners except for justifiable especial causes. Prior to 1889 there had been a series of decisions to this effect in Madras Courts: but in that year, following the judgment of this Committee in 10 All 272 the High Court of Madras overruled those decisions, 13 Mad 197,27 and it has recently been held by this Committee in 22 Mad 283 that impartible zamlndaries in the Presidency of Madras are not inalienable in the absence of proof of some special family custom or tenure attaohlng to the zamindary, and having that effect.

44. In short the change over was from one legal theory to another. According to the earlier, there is nothing incongruous in a joint family holding an impartible estate though its essential character of impartibility necessarily displaces the right to common enjoyment and partition. Bub succession and maintenance in no way impinging on impartibility were not struck at by it. The joint ownership remained as a live though dormant force, active nofi only in the matter of succession and main, tenance but also in regard to the restrainfa on alienation. Such was the view which had been consistently taken before 1889. Looking at it purely from the standpoint of legal theory, it is difficult to find fault with it: 4 Mad 250.28 Indeed Lord Dunedin seems tacitly at any rate to concede so much in 43 All 228. According to the other theory of which 10 All 272 and the second Pittapur case are the ex ponents, there can be no real coparcenary or joint ownership in impartible property and in strict legal theory, two such conflicting incidents as impartibility and co-ownership cannot coexist side by side in the same estate at the same time. The holder must be the full and sole proprietor as he is in fact unrestrained in his enjoyment of the estate and uncontrolled in his power of disposal over it. Such an extensive right can be understood only if the estate is regarded as his separate or self acquired property. True, the successor is to be ascertained by calling into aid the rule of survivorship peculiar to joint property, but that is not because of an actual, living unity of title; it is merely a fiction to be imagined for the nonce, a mere survival perhaps from an archaic system which has perished: 30 Mad 454.29 On the former of these two theories the claim to maintenance could be sustained: the latter would negative it. A choice has therefore to be made between these opposite theories, a choice which has been rendered easy by the decision of the Board in 43 All 228 and in 56 All 468. In them, the Privy Council appear to have unmistakeably made the choice themselves. It would not therefore be right for us to refuse to follow the interpretation given in these later decisions, whatever our view might have been in the absence of these decisions.

45. As will be shown presently the authority of 10 All 272 and the others which had accepted the school of thought reflected in it holds good only in so far as the power of absolute disposal recognized in them is concerned. It is an anomaly no doubt that there could be a co-ownership which is at the same time capable of being destroyed by a unilateral and capricious disposal of the property by the head of the family. But law can scarcely be logical, where it is mounded and modified to give effect to intruding custom. It is not the function of this Court for that reason to cavil at an established principle if it has the support of the Judicial Committee. Its illogic, if any, has to be mended only by resort to legislation. In fact that is what happened in Madras. Soon after the decision of the Privy Council in the first Pittapur case when this Presidency awoke to the new interpretation of the law, the local Legislature effected by statute a restoration of the law to what it was all along under, stood to have been. The Madras Impartible Estates Act, Acts 2 of 1902 and 2 of 1904, both contain provisions enacted for the purpose of replacing on the holder for the time being, the restraint on alienation, which had been displaced as a result of 10 All 272. More recently by an Amending Act (12 of 1934) express provision has been made recognizing a right of maintenance in favour of descendants up to the third degree, while in regard to others, the law was left where it was. 43 All 228 decided in 1921 is a definite landmark in the evolution of the law relating to impartible estates. The question there raised related to the succession to an ancient impartible estate, the contest being between the senior lineal descendant of the common ancestor of the last holder on the one hand, and his uncles who were therefore collaterals one degree nearer but of a junior branch on the other. The family was undivided. Their Lordships upheld the superior claim of the former, observing, that this zamlndary being ancestral property of the joint family, though impartible, the successor falls to he designated according to the ordinary rule of the Mitakshara law, and that the respondent being the person who in a joint family would, being the eldest of the senior branoh, be the head of the family, is designated in this impartible Raj to occupy the gadi.

46. The entire case law was most carefully considered by Lord Dunedin who had him self as a member of the Board delivered the judgment in the second, Pittapur case.9 The argument that impartible estates must be held to be governed by the ordinary rule of law applicable to separate or self-acquired property, as the logical and inevitable conclusion to be reached from 10 All 272 and the second Pittapur case, was in terms rejected. Lord Dunedin observed:

The question of how to select the head of the family in a joint family is part of the general law. That the custom of impartibility does not touch it is shown by the long list of authorities above cited, and there is in their Lordships' view no necessary logical deduction from the decisions in 10 All 272 and 41 Mad 778 which fofces them to an opposite conolasion.

47. The first of these cases was distinguished on the ground that what was decided in it was that in an impartible Raj there was no such co-ownership in the other members as to give them a title to prevent alienation by the holder; and that the right of the other members that was being considered was a presently existing right and not the chance which each member might have of a succession emerging in his favour in the future which, it was said, was obviously outside the inquiry. As regards the second Pittapur case it was observed that the claim for maintenance as put forward was made, not against the head of the family of which the claimant was a member, bub against a stranger donee, against whom it could not prevail unless it was of the nature of a real right. Their Lordships added:

How it could only be of the nature of a real right, no proceedings having taken place before the estate got into the hands of the donee, if the maker of the claim had before that event been a person who was in some way an actual co-owner of the estate, and any observations which go to the question of maintenance apart from the question of real right may he treated as obiter dicta.

48. The italics are mine. The italicized words appear to suggest that there was or might have been an enforceable claim against the estate so long as it was in the hands of the previous holder but it failed as against the donee because the claim had not been converted into a charge before the gift was made. But this construction cannot, I admit, be said to be clear enough for being acted upon more especially on account of the views expressed in the two later decisions of the Board to which I shall refer presently. It is more pertinent for the present purpose to enquire what in fact were the observations in the second Pittapur case which in their Lordships' opinion deserved to be treated as obiter dicta, according to 43 All 228. As I understand it, the position taken up by Lord Dunedin was this. The estate had passed into the bands of a stranger who had taken it absolutely under the will of the previous holder. Being a stranger to the family he cannot be made liable for the maintenance, unless the estate itself had been, previous to the transfer, subject to a charge. There was no charge for a mere maintenance claim under Hindu law. In other words it was not of the nature of a real right. True he was a coparcener; but his coparcener, ship or co-ownership had been overwhelmed by the custom of impartibility to such an extent that it ceased to be a full or actual oo-ownership. It was not in fact an actual oo-ownership at any time, but it was less of it, after 10 All 272 which had negatived his right even to interdict an unjustifiable alienation in spite of its resulting in a total destruction of all his right. A discussion of such a limited co-ownership had no bearing on the claim as against the stranger, as it could not influence the decision in any event one way or the other. So it followed that the observations in the second Pittapur case regarding the absence of coparcenary rights in an impartible estate were really unnecessary, and were accordingly to be treated as obiter dicta. Having thus disposed of the theory of a total absence of all coparcenary right in the junior members, his Lordship felt himself at liberty to examine the question afresh, and came to the conclusion that a limited coparcenary did exist in an impartible joint family estate and governed the choice of a successor to it.

49. In so far therefore as the second Pittapur case spelt the negation of a coparcenary in such an estate as being incompatible with impartibility it has ceased to be a binding authority. That is why it seems to me, Lord Dunedin criticized the use of the words coparcenary and coparceners as applied to a joint family under the Mitakshara, and said that it is necessary not to fasten the attention on the word coparcenary but rather to inquire what actually was decided in 10 All 272. That again is the reason why turning to the second Pittapur case they stated that it must be remembered that the claim put forward was made not against the head of the family of which the claimant was a member but against a stranger. It is no longer possible to regard the second Pittapur case as governing a claim to maintenance, where the claimant is a coparcener and a member of the joint family and not a mere stranger. Deprived, as it undoubtedly was, of some of its essential attributes, coparcenary still remained, submerged but not destroyed, yet sufficiently alive to regulate succession. Whether it has been left with sufficient strength to support a claim to maintenance also is a question which cannot be deemed to have been concluded by this case, but remains open for future decision. The power of independent disposal recognized by 10 All 272 was however affirmed, with the observation that case had stood too long to be disturbed.

50. The nature of the coparcenary right in relation to an impartible estate once again arose for consideration by the Privy Council in 54 Cal 955. The main appeal before the Board was directly concerned with the validity of a disposition by will by which the last holder had diverted the succession away from the appellant who would have in the ordinary course taken it by survivorship, as the family was undivided and the estate ancestral. The will was upheld. No other conclusion could have been arrived at without overruling 10 All 272 and the cases that followed it which their Lordships declined to do. The in consistency between the two lines of cases, the one accepting and the other negativing the co-ownership theory, was again urged, but in vain, as 43 All 228 was considered fatal to the contention. But of special significance to the present appeal are, it is urged, the observations of the Board made in the cross-appeal of the respondent objecting to the High Court's order regarding the appellant's claim to maintenance. Their Lordships negatived it firstly, on the ground that the maintenance of himself or his family was already provided by a khorposh grant of certain villages to his predecessors, which villages are still in his possession; and secondly because he has failed to establish a right to maintenance by custom or relationship or in any other way: see the second pittapur case.

51. The express approval of the decision of the second Pittapur case coupled with the non-recognition of relationship as a ground of claim in itself, does seem to go far to support the appellant's contention. But as against this, it was argued before us that in view of the finding that the claim had been satisfied by a suitable provision already made, the reference to custom and relationship as the basis of the claim should not be regarded as a binding decision.

52. In 59 Cal 1399 the question whether co-ownership can be said to be an attribute of a joint but an impartible estate, was once again raised and considered. Their Lordships re-affirmed the principle in 43 All 228, which did not in fact enunciate a new principle, as again and again pointed out by the Board. The applicability of the Mitakshara joint family law was once again reiterated, their Lordships observing that the right of survivorship is not to be regarded as a mere spes sucoessionis but a right capable, of being renounced and surrendered. Any lingering doubt based on the observation of their Lordships in 43 All 228, where they spoke of co-ownership as not amounting to a presently existing right and as giving rise to a mere chance of sue cession, was dispelled. This of course sounds the death knell of the view that joint ownership in regard to an impartible estate is a mere myth. But here again observations do occur, regarding maintenance on which the appellant naturally enough founds himself. Referring to the four incidents which usually come up for consideration when an impartible estate is claimed as being held by a joint family, their Lord-ships analyzed the legal position and held that out of those incidents, namely (1) the right to partition; (2) the right to restrain alienation by the head of the family except for necessity; (3) the right of maintenance; and (4) the right of survivorship the first three should be held to have been superseded by custom; and that consequently an impartible estate though ancestral must be deemed to have become clothed by custom with the incidents of self-acquired and separate property. The meaning of their Lordships' observations is plain, namely that the right of maintenance must be regarded as incompatible with impartibility and cannot therefore be substantiated except by proof of a custom. But it is no disrespect to their Lordships to say that what was said about maintenance in this case was by way of a reconciliatory statement of differing views as they were, rather than a definite decision that one was right and the other wrong.

53. 56 All 468 contains the latest ex position of the law by the Judicial Committee in a way which, in my opinion, leaves no more doubt as to the principle on which this appeal falls to be decided. With, out it, I may frankly admit, the decision of this case must be the other way. It may be that the question of maintenance was not the question that called for a direct decision in this case either, which in fact related to a question of succession. But that is not a criticizm to which this Court at any rate can attach weight. It was Lord Blanesburgh who delivered the judgment but the Board included Sir John Wallis whose intimate familiarity, if I may say so with respect, with the peculiarities of the law relating to impartible estates is so well known, that an added importance attaches to the general position of the law categorically stated in the shape of seven propositions, of which Nos. 1, 2, 3 and 7 are of the utmost importance for the present purpose. Of these propositions, Nos. 1 and 2 do not, call for special notice as they are general in character and refer only to the error of thinking that a custom of impartibility is destructive of the co-ownership of the junior members of the joint family. But Nos. 3 and 7 are couched in unambiguous language and mark, as I think, a definite restoration of the law such as it was under, stood to be before 10 All 272. That law, as I understand it, recognized the right of a junior member however remote, to maintenance out of the joint family estate, as a consequence of his membership alone, without proof of a custom. The words “at length” and “now” used in the third pro-position and the observation in the seventh that the recent decisions of the Board constitute a further landmark in the judicial exposition of the question at issue show that while they were quite conscious of the contrary theories which had found expression in the second Pittapur case, and the two other cases cited above, 54 Cal 955 and 59 Cal 1399, their Lordships definitely declined to perpetuate them. The true basis of the right of maintenance, namely the joint ownership of the junior members according to the Mitakshara law, was at last accepted and 24 Mad 147 which had been decided without reference to custom was cited as illustrative of that view, though it had been understood in a different sense in the second Pittapur case. The seventh proposition quite clearly re-affirmed the dethronement of the theory of fictional co-ownership, in far more positive language than even that used in 54 Cal 955 and proceeded to derive the right to maintenance from membership of the family as the result from a cause where the family was joint.

54. I regard this case as finally setting at rest all controversy on the subject of impartible estates. The status of the junior members has at long last been vindicated and with it also the attendant right to maintenance arising out of it, though it might be defeasible by an alienation supervening, unless made a charge on the estate in the meanwhile. For it is clear that freedom from restraint on alienation whether illogical and incongruous or not remains supreme, at any rate in those provinces where legislation has not been resorted to. The learned Judge in the Court below is of the opinion that the second Pittapur case still governs the question of maintenance, as on this point, it had not been departed from in the two later cases referred to above, 54 Cal 955 and 59 Cal 1399 and must be held not to have been departed from even in the last one either. He thinks that in the use of the qualifying phrase “however limited” in the third proposition of their Lordships in 56 All 468 there is a sufficient expression of intention to leave the right of maintenance to be still regulated by the second Pittapur case In the first place such a construction seems to be opposed to the general tenor of exposition adopted in the judgment, and attaches no significance to the use of the words “at length” and “now” by their Lordships; secondly and in view of their Lordships' obvious disinclination to accept the soundness of the several principles enunciated in second Pittapur case and the earlier cases which it purported to follow, a re-statement of the law became necessary, for the purpose of redeeming it from the confusion which had resulted from those eases. This, their Lordships did in the dearest way possible, so as to avoid misunderstanding in the future, Thirdly there is no warrant for reading into the words “however limited” a meaning out of tune with the theme of the judgment. It is quite possible to give full effect to those words by regarding them as a reference to the defensibility of the right by alienation—which is a limitation imposed by 10 All 272. Or what is more probable their Lordships might have used the words by way of a necessary caution in view of the possibility of some limitation existing in the law itself, without deciding, as their Lordships were not called on to decide, whether it in fact existed or not.

55. The learned Subordinate Judge also refers to Ramesam J.'s judgment in 57 Mad 102330 as also lending support to his view. In that case the question was whether the money received by the uncle of the holder of an impartible estate was taxable as money received by him as a member of a Hindu undivided family within Section 14(1) of the Income-tax Act, 1922. The answer was in the affirmative. The decision did not, as it could not, take note in 56 All 468 which came later. The right of junior members other than the son of the last owner did not arise for consideration either, and was not in fact considered. If I may say so with respect, the sentence extracted from his judgment by the learned Subordinate Judge seems to my mind to lay down the contrary of what he has said about it. I am free to confess that for myself I regard the reference in the second Pittapur case to 24 Mad 147, as one made for the purpose of explaining that the latter case should be regarded as truly based on custom and not on law, only that the custom was one which did not require proof on account of its having been frequently acted upon by Courts. Ramesam J. however thinks that Lord Dunedin intended to say that the right to maintenance was not the creature of custom, but an incident of the law which had not yet in that respect been encroached upon by custom. 71 MLJ 568,31 at p. 572 on this view. This, of course, is the view which has been since expounded in 56 All 468, though I doubt whether Lord Dunedin meant to convey that sense in the following passage:

As to the zamindari estate, the Board held it was impartible, and the consequence is that the plaintiffs as the younger brothers of the zamindar retain such right and interest in respect of maintenance as belong to the junior members of a Raj or other impartible estate descendible to a single heir.

56. It may be observed in passing that if the right to maintenance is based on the law, no proof except of course of the necessary relationship, need be given. It is only where the law does not confer the right, 7 All 1 : 11 IA 149,32 a special custom recognizing the right has to be established by the production of the kind of proof, 14 MIA 57033 at page 585, required to establish a custom at variance with the law. In the second Pittapur case which proceeded on a theory which must now be deemed to have been at last exploded, the claim failed as there was no proof of the custom. Now that the law has been ascertained or to be more correct, re-ascertained, as favouring the recognition of the right of a member, the only question for consideration is whether the respondents are members of the family, and that question has to be answered, as already mentioned, in the affirmative. There are no degrees of relationship to be taken note of for the purpose of maintenance, for, in a joint family living in union, every member, however remote, has the right to be maintained out of the common property as is even now the case in the Malabar tarwads not subjected to a division under Madras Act 22 of 1933. The right to maintenance is indeed the mode in which the right of ownership in the tarwad property is most effectively enforced by the junior members. The incidents of the joint holding of tarwad property approximate closely to those that attached to an impartible estate according to the decisions prior to 10 All 272. The karnavan of a Malabar tarwad occupies a position similar in several respects to that of the holder of an impartible estate. There is so much that is common to the Mitakshara joint family law and the Marumakathayam law that the latter may be regarded without much violence either to principle or legal history, as representing but a school of Hindu law as Sundara Ayyar J. thought, in spite of its being based on the matriarchal instead of the patriarchal theory of joint family. It is as difficult on principle to limit the right of maintenance to a few only of the members as it is to limit the membership itself in the one case as in the other for after all maintenance is the necessary resultant of membership. The position would be different if the family is governed by the Dayabaga or even by the Mitakshara law if the estate is the separate or the self, acquired property of the holder.

57. The Privy Council having in their latest pronouncement resuscitated in express terms the principle of the decision in 24 Mad 147, it is desirable to see precisely what the nature and character of that principle is. The relevant observations have been extracted above, and are not now to be understood as they were sought to be inter, preted in the second Pittapur case On the contrary, they have now to be taken as a statement of the law according to which junior members have a right to maintenance by law and there is no need any longer to prove a custom to make it out. Emphasis is not to be placed on the claim being a claim by younger brothers, which of course was the fact in the particular case, but on the right under law admitted to inhere in the junior members. Some of the earlier cases may now be noticed as they show that Lord Blanesburgh's exposition is in accord with the law regarding maintenance as understood before 10 All 272. 12 MIA 1,34 was decided on the finding that the estate was the separate and self-acquired property of the last holder. The successful heir was a grandson by the eldest son in whose favour the last holder had also executed a will. The decision apparently proceeded on the footing that the Mitakshara law was applicable. The observations at the end of p. 39 of the report to the effect that there are no inchoate rights of inheritance in the junior members of the family and that they did not by birth acquire community of interest with their grandfather must be understood with reference to the finding that the estate was the separate estate of the grand father who was the last holder. At the same time there is in the judgment, a reference to the right of maintenance of junior members, though the estate descended and was held according to the rule of primogeniture. This reference is perhaps capable of being explained away on the ground that it may be regarded as an incident established by custom in that; case, though there is in fact no reference in the judgment to any such specific custom. 13 MIA 333,35 a decision of the Privy Council, applied the rule in 9 MIA 53936 with this difference that whereas in 9 MIA 539, the estate was found to be the separate property of the last holder, the finding in this case was that) it was the joint estate of the respondent and the appellant's husband. The appellant failed because the respondent took the estate by survivorship. In this case, there was a grant to the com mon ancestor of the family, which referred to the provision of vasaties (landed gifts) to the three brothers who were the junior members of the family, by way of maintenance. Referring to this provision, their Lordships made the significant observation:

These grants by way of maintenance are in the ordinary course of what is done by a person in the enjoyment of a raj or impartible estate in favour of the junior members of the family; who, but for the impartibility would be coparceners with him.

58. In 1 Mad 312 referring to the succession of the eldest of three brothers to an impartible estate, the Board observed that the estate must be taken to have descended to him as ancestral estate and that he would therefore necessarily be joint in that testate, so far as is consistent with its impartible character, with his two younger brothers, the latter taking such rights and interests in respect of maintenance and possible rights of succession as belong to the junior members of a joint Hindu family in the case of a raj or other impartible estate descendible to a single heir.

59. The observations in the three cases referred to above seem definitely to acknowledge a right of maintenance as inherent in the junior members of a joint family holding an impartible estate as family property. The matter is further dealt with in 4 Mad 250 where the statement of the law occurs at page 266:

Bat where, from the nature of the property, possession is left with one coparcener, the others are not divested of co-ownership. Their necessary exclusion from possession imposes on the co-owner in possession two obligations to his coparceners in virtue of their co-ownership—the obligation to provide them with maintenance and the obligation to preserve the corpus of the estate. The rights of possession and maintenance are to this extent distinct and inconsistent that they cannot co-exist and be enjoyed by the same persons, that the one is a right to the immediate perception of the fruits of the property, the other a right to an indirect benefit, but both rights have a common origin, unity of ownership.

60. As I have said, there is nothing inherently incongruous in the theory thus expounded. But so far alone as the obligation to preserve the corpus of the estate for the benefit of the junior members is concerned, it must now be taken that it has been finally negatived by 10 All 272, the first Pittapur case and 54 Cal 955 already referred to. In 24 Mad 562,37 confirmed by the Privy Council in 28 Mad 508,38 and in 20 MLJ 39439 the nephew of the last zamindar, that is a member beyond the first degree, was held entitled to maintenance out of the estate as a junior member. In the second of these cases, the decision of the Privy Council in 24 Mad 147 was referred to as reoognizing the legal right to maintenance of the junior, members of a raj or other impartible estate, the learned Judges one of whom Wallis J., as he then was, observing that so far as their knowledge extended, the claim was in accordance with the usage prevailing in Southern India. In the next decision of the Madras High Court in 23 MLJ 79,40 a claim for maintenance was successfully advanced by a person, who was more than three degrees removed from the common ancestor but who was still a member of the joint family along with the holder. A great portion of the elaborate judgment delivered in this case was taken up with a discussion of the effect of 10 All 272 and a conclusion was reached almost parallel to that reached later by the Privy Council. The remoteness of the plaintiff's relationship which was without success made the ground of attack was not however the remoteness beyond the first degree mentioned in the second Pittapur case but a remoteness of more than three degrees which it was contended dissipated the oo parcenary right even in an ordinary Hindu joint family. The contention was negatived but what is of interest for the present purpose is that even so remote a collateral as a claimant beyond the third degree was recognized as entitled to maintenance. This decision was followed in a later case in 26 MLJ 205,41 where the proposition that the junior members of a joint family holding an impartible estate are entitled to maintenance out of the impartible property was accepted and extended to the case of the widow of such a member.

61. As I understand these cases, it appears to me that there is no warrant for holding that a junior member though he may be 1 neither a brother nor a son, is to be regarded as disentitled to maintenance out of the impartible estate when it is held by a family of which he is a member. If the estate does not belong to a joint family but is the separate or self-acquired property of the holder, the rule is of course different 71 MLJ 568. In such a case, any junior member irrespective of the degree of relationship must, if he can, make out his right only by proof of a custom. It may be that if he is a brother or a son, a custom in his favour will be presumed on account of the rule mentioned at the bottom of page 154 in the second Pittapur case, namely, when a custom or usage, whether in regard to tenure or a contract or a family right, is repeatedly brought to the notice of the Courts of a country, the Courts may hold that custom or usage to be introduced into the law without the necessity of proof in each individual case.

62. Indeed, where the law itself favours the, claim there is no necessity for relying upon a custom, which if it did exist would coincide with it. In conclusion I may also mention that it is a matter of some satis, faction that our decision on the question of Hindu law is in accordance with what the members of this family seem themselves to have thought right. In the deed of settlement, there is not the slightest indication that junior members beyond the first degree were regarded as not entitled to maintenance out of the estate. The deed was, as is quite apparent, primarily brought about for settling a claim to partition put forward by two of the four brothers and not for the purpose of resolving a disputed question of maintenance. It recited “the rulers for the time being shall according to law and custom completely possess all the privileges and enjoy them, subject only to the condition of paying allowance to the other members of our family suitably to their respective status, out of the income from the estate and the properties.” And again in cl. 5, it is stated:

As the said Venkatagiri estate is impartible and as the aforesaid Sri Muthukrishna Yachendrulu Varu Sri Venkatakrishna Yachendrulu Varu and Sri Venugopalala Krishna Yaehendra Varu and their male descendants are entitled to get allowances from the said estate, we……appointed the Rajah of Bobbilli, as mediator, to determine the amount of allowance to be given to the said Sri Muttukrishna Yachendrulo, Sri Venkata Krishna Yachendrulu and Sri Venugopala Krishna Yachendrulu and to their male descendants.

63. These two extracts from the deed show that the parties to it and their advisers namely Sri Kumara Yachama and the Maharaja of Bobbilli understood the law and custom to be that other members of the family in general and not merely the sons and brothers of the holder were entitled to be maintained. A further significance arises out of the fact that the deed was also the result of a consultation with the father Sri Kumara Yachama which preceded the settlement, who as the document states it, knew everything and who had considerable experience. Another circumstance on which some point was made for the respondents was that the deed is dated 8th April 1889. It was said that the effect of 10 All 272 though anterior in date was not realized in Madras till October of the following year when alone it became known by reason of the decision in 13 Mad 197. So it was contended that it) must be held that the parties acted on the view of the law as it was understood prior to 10 All 272 and effect should accordingly be given to it. There is authority for this proposition, it was urged in 27 Mad 131. Whether there is any substance in this argument or not, I do not think it necessary on the view I have taken to discuss this aspect of the matter, as independently of it the claim of the respondents seems sufficiently well-founded.

64. The result of the case-law on the question of maintenance of junior member may now be summed up thus. Till the decision in 10 All 272 his right to maintenance by reason of his membership of the family was open to, no doubt, in spite of the family property being impartible. That case recognized in the holder for the first time a power of unrestrained disposal over the estate in derogation of the rights of the other members of the family which were held not to exist, as there could be no right by birth where there is no right to partition. The later cases have not interfered with the power of absolute disposal recognized by this case, but on the contrary have affirmed it. In so far as the question of succession is concerned, the Privy Conn, oil have clearly and unambiguously reasserted the existence of a real and not merely a visionary coparcenary in the members of the family. In regard to maintenance which is an ordinary incident of partible property there are no decisions which can now be treated as ruling the point. There have been two cases in which the question of maintenance arose for decision, namely the second Pittapur case followed without discussion in 37 MLJ 18842 and 54 Cal 955. The first of these cases, though a direct decision, must now be regarded as having proceeded on the entire absence of relation, ship between the parties and is not there, fore to be regarded as authority in a case where a relationship and membership is set up and found, the present being such a case. The observations in the second of the cases, though clear in themselves and may and ought to be treated as binding, have been counteracted and neutralized by the latest pronouncement of their Lordships in 56 All 468, which has cleared the way for the application of the rule in force before the advent of the doctrine propounded by 10 All 272 and the other cases including the Jaipur case, 37 MLJ 188 : 24 CWN 226 which followed it, and which spelt the absence of oo-ownership in the junior members of a family holding an impartible estate. We are therefore bound to give effect to the principle of the latest decision of the Privy Council, and so doing, we must uphold the respondents' claim. For the reasons explained above, I am of opinion that the respondents are under the Hindu law entitled to maintenance from the impartible estate in the hands of the appellant. On the other points that arise in the case, I have nothing to add to the judgment of my Lord the Chief Justice. This appeal having been set down for being “spoken to” this day the Court made the following:

65. By consent the monthly allowance will be payable on the 15th of the succeeding month.

C.R.K/R.M

66. Order accordingly.