JUDGMENT

(Delivered by Patanjali Sastri, J.)

Krishna Vijia Poochayya Naicker who was the last zamindar of Marungapuri, an impartible estate situated in the District of Trichinopoly, died on 17th September 1926 leaving him surviving three widows and a daughter by a predeceased wife, besides four sons and one daughter who claim to be his illegitimate issue by a permanently kept concubine. On his death disputes arose as to succession to the zamindari which is descendible to a single heir in accordance with the provisions of the Madras Impartible Estates Act, 1904 and the Court of Wards, after making enquiries, recognised the senior widow as the proprietor and assumed control and management of the estate on her behalf on the 23rd July 1927.

In February 1938 proceedings were commenced in forma pauperis in the Court of the Subordinate Judge, Trichinopoly, by the alleged illegitimate sons, the eldest of whom sought possession of the zamindari and partition and delivery of an eighth share in the partible properties left by the zamindar with an account of their income since his death, claiming that, both according to the custom of the community to which the late zamindar belonged and to the Hindu law, he was entitled to succeed to the impartible estate in preference to the widow. He also claimed, in the alternative, arrears of maintenance at the rate of Rs. 100 per mensem from the death of the zamindar upto date of plaint and future maintenance at Rs. 500 per mensem together with an allowance of Rs. 10,000 for his marriage expenses, out of the impartible estate. The others claimed partition and delivery of their shares of the partible properties and maintenance out of the estate with allowances for their education and marriage. The proceedings were later registered as O.S Nos. 49 and 50 of 1941 respectively after the pauperism of the claimant was established. In both suits the Court of Wards was impleaded as the first defendant and the senior widow as the second defendant and they alone contested the suits, the other members of the family who were also impleaded remaining ex parte. The suits were tried together by consent of parties and the whole evidence was recorded in O.S No. 49 of 1941.

The following genealogical table will show the relationship of the parties to one another and how they are arrayed in the main suit O.S No. 49 of 1941.

The learned Subordinate Judge found, on the main issues, (1) that the plaintiffs in both suits are the illegitimate sons of the late zamindar by his permanently kept concubine Marimuthu Ammal, (2) that the plaintiff in O.S No. 49 of 1941 was not entitled by law or by custom to succeed to the impartible estate in preference to the senior widow, (3) that the plaintiffs were not entitled to any share in the separate properties not forming part of the zamindari, as such properties had been validly disposed of by the zamindar by his wills dated 30th July, 1915 and 10th August, 1926 and (4) that the plaintiffs were not entitled in law or by custom to maintenance or other allowances out of the impartible estate, as the zamindar had made provision for the maintenance of his concubine and her children and directed by his will that they should have no further claim against his properties. The learned Judge accordingly dismissed the claim in both the suits except for a sum of Rs. 3,000 bequeathed as a legacy to the first plaintiff in O.S No. 50 of 1941 for which a decree was passed in that suit. Hence these appeals.

The finding of the learned Subordinate Judge that the plaintiffs are the illegitimate sons of the late zamindar by a continuous concubine has not been questioned before us. Nor was any serious attempt made to displace the finding that no special custom was established entitling the illegitimate sons to succeed to the impartible estate in preference to the widow. It was, however, urged by Mr. Subba Rao on behalf of the appellants that under the Mitakshara system of Hindu law, as applied to impartible estates descendible to a single heir, the illegitimate son of a Sudra excluded the widow in a competition with the latter, and that, accordingly, the eldest illegitimate son, the plaintiff in the main suit, was entitled to succeed to the late zamindar who was admittedly a Sudra.

Two lines of argument were advanced in support of the claim. In the first place it was said that the illegitimate sons were coparceners with the zamindar and on his death the eldest of them succeeded to the estate by survivorship. Reliance was placed in support of this argument on two decisions of the Judicial Committee of the Privy Council namely Vellayyappa Chettiar v. Natarajan (1), and Bhupati Hurrochandra Mahapatra v. Nityananda Mansingh (2). In the first mentioned case their Lordships held that the illegitimate son of a Sudra by a continuous concubine is a member of the father's family and has the status of a son. In the second, it was held that, on the father's death, the illegitimate son and his legitimate half brother succeeded to the estate as coparceners, so that when the latter died before partition, the illegitimate son took the whole estate by survivorship. It was argued that a coparcenary between the illegitimate son and his legitimate half brother could not spring into being for the first time on the father's death but should be deemed to exist even during the father's life so as to include him also, although the illegitimate son could not demand partition until the father's death. The position of the illegitimate son in the family was said to be more or less analogous to that of an undivided son of the holder of an impartible estate. Just as the latter takes the estate by right of survivorship notwithstanding that his right of enjoyment was excluded, so the illegitimate son of a Sudra, who can take a share only by the father's choice, is neverthless entitled, on the father's death, to the right of succession by survivorship. This reasoning is, in our opinion, fallacious. For, in the case of ordinary partible property, it is settled law that the illegitimate son takes, in the absence of a legitimate son, an equal share with the widow or the daughter, or the daughter's son, which implies a flat negation of coparcenership with the father. In fact, the special text of Yagnavalkya dealing with rights of the illegitimate son of a Sudra clearly shows that such son does not acquire at his birth any right in his putative father's property, as he can take a share only by his father's choice. This indeed is recognised in Bhupati Hurrochandra Mahapatra v. Nityananda Mansingh . The analogy of an impartible estate is misleading. As has been pointed out in Shiba Prasad Singh v. Prayag Kumari Dabee (3), impartibility is a creature of custom which has superseded the incidents of joint family property except the right of survivorship. But, apart from such custom, the general law of Mitakshara does not countenance the idea of coparcenership on the part of a person who has no right to demand partition or to restrain alienations except for necessity and becomes entitled to a share in the property by inheritance. We think that all that was decided in Bhupati Harrochandra Mahapatra v. Nityananda Mansingh , was that on the father's death the legitimate and the illegitimate sons jointly succeded to his estate with rights of survivorship as between them. No coparcenership with the father can be deduced from this decision any more than coparcenership with the husband can be deduced from Bhagwandin Doobey v. Myna Bayee (4), where their Lordships held that widows succeeding to his estate were “coparceners in the strictest sense of the term” with mutual rights of survivorship.

An argument was founded on the scheme and structure of Chapters I and II of the Mitakshara as well as on certain observations of Sadasiva Aiyar, J., and Kumaraswami Sastri, J., in Subramania Iyer v. Ratnavelu Chetti (5), in support of the view that an illegitimate son of a Sudra is a coparcener with his putative father and succeeds to the father's estate as apratibandha daya or unobstructed heritage. This argument is so fully and elaborately dealt with in Ratnasabapathi Udayar v. Gopala Udayar (6), that a detailed examination of it here has been rendered unnecessary. It is sufficient to say that the argument was rejected by the learned Judges. Devadoss, J., observed,

“The illegitimate son of a Sudra is not a coparcener with his father though he may be a coparcener with his father's legitimate son.”

and Pakenham Walsh, J., said this,

“The decisions have uniformly held that the coparcenary of the illegitimate Sudra son with his legitimate brothers is caused only by the death of the father and it has never been held that the illegitimate son is a coparcener with his father still less a coparcener with his father's coparceners.”

The same view was also expressed in Shamu v. Babu Aba .

The second line of argument attempted by Mr. Subba Rao was that, even assuming that succession to the late zamindar was not to be determined on the footing of a coparcenary between him and his illegitimate sons the zamindari being descendible to a single heir, the senior illegitimate son should be held to be a preferable heir to the senior widow. Mr. Subba Rao urged various considerations as grounds for such preference. In the first place, it was said that the illegitimate son took his share in the father's partible property absolutely, while the widow, being a female heir, took only a limited estate in respect of her share in the property. We fail to see how this can be a ground of preference. A female heir always takes a limited estate under the Hindu law, but that circumstance is not considered relevant under that system in determining preference. A widow or a daughter ranks higher than many a remoter male heir in the scheme of succession, although the latter, when he takes the property, takes it absolutely. Preferential heirship is determined by other considerations. Reference was made in this connection to Raja Rup Singh v. Rani Baisni where it was held that the impartible estate there in question belonged to a joint family and that the widow was excluded by a surviving collateral member of the family. There was no competition between the widow and the illegitimate son and the case is not in point. Secondly, it was suggested that as the illegitimate son has been held to be a coparcener with the legitimate son, his status must be considered superior to that of the widow who should accordingly be postponed in a competition with him. We see no force in this suggestion. No general superiority of status can be deduced from the coparcenership with the legitimate son, and we cannot see why such coparcenership should operate as a ground of preference over the widow. It was next urged that the illegitimate son offered pinda to the putative father according to Brihat Parasara [See Subramania Iyer v. Ratnavelu Chettiar ] and this should be regarded as a ground for preference. But as pointed out in Meenakshi v. Muniandi Panikkar it is well established that, under the Mitakshara system of inheritance, the offering of spiritual benefit is no index to rights of property or preference. Lastly, it was pointed out that the illegitimate son was ranked among the sons in the Mitakshara, while the widow was classed among the heirs who took only in default of male issue. This argument is closely connected with the argument founded on the arrangement of the chapters in the Mitakshara already referred to. While it is true that the conclusions in Vellayappa Chettiar v. Natarajan as to the status or a Sudra illegitimate son in the family of his putative father are to some extent based on inferences from the place in which the special texts dealing with the rights of the illegitimate son are to be found in the Mitakshara, it would, in our opinion, be unduly pressing the argument to hold, on the strength of it, that the claim of the illegitimate son to his father's impartible estate must prevail against that of the widow with whom he takes only an equal share where the property is partible. It is pertinent here to point out that the illegitimate son is not included among the twelve categories of sons enumerated by Yagnavalkya in verses 128-132 but is separately mentioned in a special text. In commenting on verses 135 and 136 which prescribe the order of succession to the estate of a “son-less” person (aputrasya) the Mitakshara observes,

“A sonless person is he who has no son of any of the aforesaid twelve categories.” (II-1, 3).

It will thus be seen that the illegitimate son is not among the principal and secondary sons to whom the heir enumerated in Chapter II are postponed, but stands apart with his rights, such as they are, defined by a special text.

On the other hand, it seems to us that a cogent ground for preferring the widow's claim is to be found in her qualified or subordinate co-ownership in the husband's property declared by the Mitakshara. Commenting on verse 52 of Vyavaharadhya (Chapter II) the Mitakshara refers to Apastamba's Dharmasutra “From marriage arises also jointness (sahatwam) in the holding of property (dravyaparigraheshu)” and says that the wife's co-ownership in the husband's property is shown by that text. It goes on to explain why it is necessary to postulate such co-ownership. Manu and other sages enjoin upon every householder the duty of making gifts such as feeding of guests, giving of alms to religious mendicants and the like which, if made by the wife during the absence of her husband abroad, would amount to theft of his property unless the ownership of the property was vested also in the wife; for, it is not to be supposed that the sages have ordained the commission of theft. The Mitakshara points out that this co-ownership should not be viewed as a negation of partition and refers to the text of Yagnavalkya (II, 115) as recognising the wife's right to an equal share at a partition effected by the husband (See Golapchandra Sarkar Sastri's Hindu Law, 8th Edition pages 236 and 237). When dealing with the wife's right of succession to her husband's estate in default of sons, it refers to her right to an equal share at a partition by the husband or by the sons as showing that the view of “Srikara and others” who declare that the wife succeeds only where the estate is small but otherwise gets only maintenance is “mere infaturation” (Vyamohamatram) (Mitakshara, 2, 1, 3). It will thus be seen that the wife's right to a share at a partition of her husband's property and her right of succession to such property in default of sons are traceable to her qualified joint interest in such property arising out of her marriage. No doubt, as pointed out in Mayne's Hindu law (10th edition) page 543, the rules of the Mitakshara allotting a share to wives, widows, mothers and grandmothers have become obsolete in Southern India owing to the influence of Smritichandrika and the Saraswati Vilasa, but in the northern provinces the rules are still in force. They are relevant here only as indicating the true basis of the widow's right to inherit her husband's estate. Though her joint interest in the husbands property is not that of a coparcener but is only of a subordinate character, it may well be regarded, in our opinion as a ground for preference in a competition with the illegitimate son who has no right to share in the father's property except by his choice.

Such authority as there is on the point also supports the widow's preferential right. In Parvati v. Thirumalai , this Court had to deal with the claim of an illegitimate son to succeed to an impartible estate left by his father, in preference to the latter's widow and brother who was in possession of the estate claiming to have been undivided from the last holder. There was no dispute between the brother and the widow who conceded the brother's claim to succeed. The trial Court found that the brother was divided, and holding that, in any case, the illegitimate son of a Sudra was, under the Hindu law, a preferable heir both to the widow and to the undivided brother, decreed the suit. On appeal by the defendants this Court came to the conclusion that the brother was undivided and held that the illegitimate son could not exclude his father's coparcener or widow.

Mr. Subba Rao questioned the authority of this decision on three grounds. In the first place, it was suggested that the decision proceeded on the view that under the Hindu law an illegitimate son was excluded altogether by his father's widow even in respect of ordinary partible property—a view which has since been discarded by all the Courts. It was pointed out that the judgment in the unreported case Kulanthai Natchiar v. Ramamani referred to by the learned Judges as supporting the widow's preferential claim contained no indication that an impartible estate was there in question, Reference was made to Meenakshi Anni v. Appakutti where, in holding that the illegimate son succeeded as a co-heir with the widow, the daughter or the daughter's son, the Court treated the unreported case referred to above as a decision relating to property that “does not seem to have been impartible property”, and criticised the decision on that basis. The learned Judges also observed that,

“The ratio decidendi in the case of Parvati v. Thirumalai is not, as supposed in the case of Chinnammal v. Varadarajulu that the widow is preferable to the illegitimate son in the case of an impartible estate though it may be supported on that ground.”

(Italics are ours).

This, no doubt, supports Mr. Subba Rao's interpretation of Parvathi v. Thirumalai but we find it difficult to assent to the view that in Parvathi v. Thirumalai the Court proceeded on any general theory of the widow excluding the illegitimate son in respect of all property. The learned Judges (Sir Arthur Collins, C.J and Muthuswami Aiyar, J.) expressly state at page 343 referring to Krishnayyan v. Muthuswami and Ranoji v. Kondoji (to both of which Muthuswami Aiyar, J. was a party),

“In both these cases it was not doubted that the illegitimate son inherits the separate estate of his putative father on failure of a legitimate son, son's son, son's grandson, widow, daughter, and daughter's son. Nor was it doubted that he is a co-sharer in such separate property with his legitimate brother and a co-heir with his father's widow, daughter or daughter's son. There is considerable authority, as observed by the Subordinate Judge, in support of these propositions of law.”

(Italics are ours).

The learned Judges thus regarded the illegitimate son's right to succeed as a co-heir with his father's widow as established beyond dispute, and we cannot, in view of that, statement, accept Mr. Subba Rao's suggestion, albeit supported by the observations in Meenakshi Anni v. Appukutti that the ratio decidendi in Parvathi v. Thirumalai was not that the widow was preferable to the illegitimate son in the case of an impartible estate. It is to be observed that Sir Arthur Collins, C.J was a party to both the decisions in Parvathi v. Thirumalai and in Chinnammal v. Varadarajulu and the observations at page 314 in the latter case where the earlier decision was distinguished as relating to an impartible zamindari must, we think, be accepted as a more authoritative interpretation of that decision. On the other hand, it is worthy of note that although the learned Judges in Meenakshi Anni v. Appukutti understood the decision in Parvathi v. Thirumalai as proceeding on the erroneous view that widow excluded the illegitimate son under the Hindu law in all cases, they added that the decision might be supported if the rule of exclusion was intended to apply only to impartible estates, that is to say, the learned Judges approved the proposition now contended for on behalf of the second respondent.

Secondly, Mr. Subba Rao urged that Parvathi v. Thirumalai should no longer be treated as good law as it was based on the theory that the share of inheritance provided for the illegitimate son of a Sudra was in lieu of maintenance—a view which has since been held by the Privy Council in Vellayyappa Chettiar v. Natarajan to be unwarranted. We do not think that, for this reason alone, the view expressed in Parvathi v. Thirumalai that, in a competition between the illegitimate son and the widow, the latter is the preferable heir can be considered to have been superseded. The learned Judges elaborately considered the position of the illegitimate son vis a vis the other members of the family such as the legitimate son, the adopted son, the father's coparcener and the widow and came to the conclusion that it was in each case relatively inferior, with the result that he must be postponed to the others. Examining his position historically, they observed,

“It was explained in Krishnayyan v. Muthuswami that an illegitimate son was originally in the position of a slave's son. It was pointed out what the precise position of a continuous concubine was among the fifteen descriptions of slaves enumerated by Narada, and how, under a text of Catyayana, the begetting of a son of a female slave first created an obligation to enfranchise the mother and her son, and eventually passed into a manumission by operation of law owing to the importance attached in early times to a son however begotten. Though relationship as son removed the taint of being born of a slave, the position of the illegitimate son in the joint family, until slavery was abolished by Act V of 1843, was that of a freed man, and in that sense inferior to that of the other members.”

And comparing his position with that of the widow in particular, they remarked,

“In Kulanthai Natchiar v. Ramamani (unreported case A.S No. 86 of 1865), it was held by the High Court that even the widow would exclude the illegitimate son. Having regard to the fact that relationship based on a legal marriage is a ground of preference, and that originally the emancipated slave and her son, though free after the birth of the son, would have ordinarily held an inferior position to that of the regular members of the family, we consider that the illegitimate son was properly postponed to the widow.”

Apparently, they regarded the unreported case as one dealing with succession to an impartible estate. But whether it was really one of that kind or not, cannot, it seems to us, make much difference to the authority of Parvathi v. Thirumalai ; for the learned Judges have, as pointed out above, given reasons of their own in support of their view that the widow is to be preferred to the illegitimate son in the case of succession to an impartible estate.

Lastly, it was said that, in view of the finding that the brother was undivided from the late zamindar and was the lawful successor to the zamindari, the observations in Parvathi v. Thirumalai regarding the widow's preferential right as against the illegitimate son were mere obiter dicta. This may be so, but as stated, the learned Judges discussed the relative position of the illegitimate son in his putative father's family in all its aspects and recorded their considered opinion. The view thus arrived at, to which an eminent Hindu Judge, Muthuswami Aiyar, J., has lent the weight of his authority, cannot be disregarded.

The decision in Parvathi v. Thirumalai , was followed in Viswanathaswami Naicker v. Kannu Ammal , which arose out of disputed claims to succession to the Bodinaickanoor zamindari. The competition there was between the illegitimate son (plaintiff), the widow (first defendant) and a cousin of the late zamindar who claimed to be a member of the joint family (fifth defendant). It was found that the family was undivided and the plaintiff was excluded by the fifth defendant so far as the impartible estate was concerned. Miller, J., however observed

“It is perhaps really not necessary to decide it (the question of division) because if the family were divided then it seems to me on the decision in Parvathi v. Thirumalai , the plaintiff would be excluded by the widow, and if the family were undivided then it seems to me our decision must be that the plaintiff would be excluded by the fifth defendant.”

Abdur Rahim, J., expressed himself thus,

“I am, therefore, of opinion that the plaintiff is not entitled to succeed to the zamindari as against the fifth defendant. Nor in my opinion can he oust the widow if the zamindari were, in fact, the separate property of the zamindar. He clearly occupies an inferior status, not only in comparison with the legitimate son but also the widow, the daughter and the daughter's son, even if it can be said that he is entitled to an equal share with these persons.”

Both the learned Judges were of opinion that the authority of Parvathi v. Thirumalai , was unimpaired by the decision of the Privy Council in Bhupati Hurrochandra Mahapatra v. Nityanand Mansingh .

These cases have been accepted in leading text books as correctly stating the law (Vide Mayne's Hindu law, 10th edition para 715; Golapchandra Sarkar Sastry's Hindu law, 8th edition page 756) and no decision contra has been brought to our notice. In dealing with a matter of succession, it is important to bear in mind the note of caution sounded by their Lordships in Thakoorain Saheba and another v. Mohan Lall and others .

“To alter the law of succession as established by a uniform course of decisions, or even by the dicta of received Treatises, by some novel interpretations of the vague and often conflicting texts of the Hindoo Commentators would be most dangerous, in as much as it would unsettle existing titles.”

We hold accordingly that the claim of the appellant in A.S No. 421 of 1944 to the impartible estate in suit must fail.

The question next arises whether the appellants are entitled as illegitimate sons to maintenance out of the zamindari. It is settled law that the junior members of the family have no right to maintenance out of an impartible estate except by custom, but the right of sons to maintenance has been so often recognised that it has been held unnecessary to prove the custom in each case: Rama Rao v. Rajah of Pittapur , Raja Krishna Yachendra v. Raja Rajeswara Rao . As already stated, an illegitimate son of a Sudra has been held to have the status of a son and to be a member of his putative father's family [Vellaiyappa Chettiar v. Natarajan ]. His right to maintenance out of ancestral impartible estates has also been recognised by the Courts. The question arose directly in Coomara Yettappa Naicker by his guardian Mootooswami Naicker v. Venkateswara Yettava That case was remitted to this Court by the Privy Council in Muthuswami Jagavara Yettappa Naicker v. Venkateswara Yattava , for determining whether the plaintiff, who was declared by their Lordships to be the illegitimate son of the previous zamindar of Ettiyapuram and, as such, to be entitled to maintenance, was entitled to receive it out of the income of the zamindari. The Court held that “impartible family estate was a fund on which maintenance may properly be charged.” The Advocate General who opposed appearing for the zamindar, did not, it was observed, dispute that the course of decisions had settled the question, and reference was made to Chuoturya Run Mardan Syn v. Sahub Purhulad Syn , Naragunty Lutchmeedevammal v. Vengama Naidoo (7), and an unreported judgment of the Privy Council. In 1870, then, the illegitimate son's right to maintenance as against his father's impartible estate in the hands of his successor was regarded as well-established and beyond dispute.

It was said on behalf of the second respondent that an examination of the two reported decisions relied on in Muthuswami Jagavat Yettappa Naicker v. Venkateswara Yettava showed that the illegitimate son's right of maintenance was based on the principles of Hindu law applicable to ordinary partible property and not on proof of any custom governing impartible estates, and that, in view of the later exposition of the law relating to impartible estates by the Judicial Committee basing the right solely on custom, the earlier decisions should not be accepted as authority on the point in issue. We cannot agree. A right which was considered to be indisputably established more than half a century ago and which is not shown to have since been denied or disputed in any decided case cannot, in our opinion, be overthrown on the strength of recently expounded theories regarding its basis. Even the legitimate son's right to maintenance which is now regarded as too well-established to require proof of custom in particular cases, appears to have been originally recognised more as a result of readily made concession or assumption of such right based on a general consciousness of its existence on the part of those concerned than as a result of any investigation of instances where such right was claimed and allowed. In Nilmony Singh Deo v. Hingoo Lall Singh Deo(8) for instance, where the claim of a grandson of the last holder of an impartible raj was disallowed in the absence of a proved custom to support it, it was observed that “it is undisputed that certain members of the family (the junior sons of the last raja) who are by this custom excluded from the actual inheritance are entitled to maintenance from the raja for the time being.” In fact, no case was brought to our notice where the legitimate son's right to maintenance out of an impartible estate was originally upheld on proof of custom in support of such right.

Reference was made to Kondama Naicker v. Kondama Naicker(9) as supporting the respondent's contention. The reporter's headnote on that case says:

“The illegitimate son of a former zamindar of an impartible estate cannot claim maintenance from the zamindari, unless he could prove a special custom in the zamindari.”

An examination of the judgment, however, reveals that the headnote is somewhat misleading. The plaintiff in that case was the illegitimate son of a former zamindar, Periya Duraiswami, who was succeeded by his brother Chinna Doraiswami. The plaintiff, having failed in his claim to succeed to the impartible estate in preference to Chinna Doraiswami, was allowed to seek maintenance out of the zamindari. Not being a son or a brother of the then zamindar Chinna Doraiswami, his claim to maintenance out of the zamindari could only succeed on proof of special custom, according to the ruling in Ramarao v. Rajah of Pittapur . It was however argued (1) that that decision did not apply as there the estate had passed by will to a holder with whom the plaintiff did not claim any relationship and (2) that it had been superseded by later decisions of the Privy Council. These arguments were repelled and the plaintiff's claim was disallowed as no special custom was proved. No distinction appears to have been drawn between legitimate and illegitimate sons in regard to their claims to maintenance out of impartible estates. The plaintiff not having stood in such relationship to the then holder of the zamindar as would have entitled him to maintenance without proof of special custom even if he was a legitimate son, nothing turned on his illegitimacy.

The position may be summed up thus. The sons of a deceased zamindar are entitled to maintenance out of the impartible estate in the hands of his successor without proof of special custom. The illegitimate son of a Sudra has been held to be a member of his putative father's family and to have the status of a son for purposes of maintenance. His right to receive maintenance out of his father's impartible estate was recognised and given effect to as well established by judicial precedents as long ago as 1870. In these circumstances, we consider that no proof of special custom is necessary to entitle the appellants to maintenance out of the zamindari in the hands of the respondents 1 and 2.

Even so, it is urged that, in as much as the late zamindar has made provision for the maintenance of the sixth defendant and her children by settlement of other properties and has declared in his will Ex. (D-20) that, “those properties are quite sufficient for them. Apart from this nothing more from the estate need be given,” the appellants can have no further right of maintenance against the zamindari. It is argued broadly that as impartible property belongs to the holder absolutely except for devolution by survivorship in case he dies as a member of a joint family, it was competent for the late zamindar to provide whatever maintenance he thought sufficient for those entitled to maintenance from the estate, and that the sufficiency or otherwise of the provision is not open to review by the Court. In support of the argument our attention was drawn to the following observation in Commissioner of Income-Tax, Punjab v. Krishna Kishore ,

“Now it is at least certain that the holder of an impartible estate stands in no such relation to those of the junior male members of the family who are entitled to maintenance. Can he not say, ‘I have provided sufficiently for my sons; I shall invest the balance of the income for myself’. Certainly he can, so far as the sons are concerned.”

We do not think that this passage in any way supports the argument advanced. In arriving at the conclusion that the income of an impartible estate is not the income of the joint family of the holder and his undivided sons but is the income of the holder himself, their Lordships were drawing attention to the essential difference between the position of the karta of a joint family owning partible property and that of the holder of an impartible estate. The passage quoted above means no more than that the holder has absolute power of disposal over the income after providing sufficiently for the maintenance of his sons. It cannot be taken to imply that the sufficiency of the provision made for the sons is not open to review, by the Court. No such question arose for consideration before their Lordships. We are unable, therefore, to accept the contention, which has found favour with the learned Subordinate Judge, that the provision in the late zamindar's will that no further maintenance from the estate should be paid to the sixth defendant and her children as he had already provided sufficient maintenance for them disentitles the appellants to claim adequate maintenance out of the zamindari. It is pertinent also to point out that in the codicil, Ex. D-2 the zamindar has directed that “if the income out of the lands given away in this way for the maintenance of the aforesaid Marimuthu Ammal, (sixth defendant) vagaira……falls snort or is found insufficient owing to other reasons, adequate allowances to each of them should be paid.” It is the appellant's case that the provision made by the late zamindar for their maintenance is utterly inadequate.

The appellants, however, will not be entitled to any allowance for their marriage expenses, as no case has been brought to our notice where such a claim was allowed against an impartible estate.

It only remains to deal with the appellant's claim to partition and delivery of their shares of the separate properties alleged to have been left by the zamindar. It is not disputed that each of the appellants is entitled to an eighth share of any partible property that may be found to have been left undisposed of by the zamindar. The second respondent, however, contests the claim on two grounds. First, all the properties belonging to the late zamindar had been validly disposed of by him under his will dated 30th July 1915, read with the codicil dated 10th August 1926, and there is nothing left undisposed of which the appellants can claim by right of intestate succession. Secondly, the properties referred to in schedule A-2 to A-6 annexed to the plaint in the main suit, O.S No. 49 of 1941, as being the partible properties left by the zamindar had been incorporated by him with the zamindari and throughout treated as accretions to it. On the other hand, the appellants contend that the will and the codicil are invalid, and, even if valid, they do not purport to dispose, and cannot, on their proper construction, be taken to have disposed, of the partible properties. The Subordinate Judge has found (1) that the will and the codicil are valid and that all the properties of the zamindar including what are claimed to be his separate properties in the schedules to plaint have been disposed of there under; (2) that the properties described in schedule A-2 being inam lands within the zamin paying only poruppu to the zamindar are not partible properties, and (3) that the properties mentioned in schedules A-3 to A-6 are the separate properties the aforesaid Marimuthu of the zamindar and not accretions to the zamindari. Findings 2 and 3 have not been questioned before us, but finding I has been challenged.

The will, Ex. D-20 is is a prolix and clumsily drafted instrument, but its main provisions, so far as they are material here, may be briefly summarised. It recites that the zamindar had three wives, Valliammani and defendants 2 and 3, and one daughter Sundaralakshmi, D.5, then living. It provides that the senior wife Valliammani should adopt a son of Sundaralakshmi if she had one, but if no son was born to her till her 35th year then any other suitable boy should be adopted. If Valliammani failed to adopt as aforesaid within two years after Sundaralakshmi's 35th year the third defendant should make an adoption in the same manner. If both Valliammani and the third defendant failed to make an adoption, the second defendant should adopt a boy subject to the same conditions. In default of such adoption Valliammani at first, then the third defendant and thereafter the second defendant should be recognised by the Government as zamindarinies, should receive the “honours etc., concerning my zamin” and should be paid Rs. 350 more per month than the other two ranies each of whom should get Rs. 150 per month. The daughter Sundaralakshmi should be given Rs. 200 per month for her expenses and on the death of the last surviving widow, she should be recognised as the rani “for my zamin so far as honours etc., are concerned” and should receive Rs. 500 from the zamin for her lifetime.

“After her lifetime, either her aurasa son or adopted son shall take all my zamin vagaira properties. Either the boy who might be adopted for me in accordance with the terms mentioned above, or the aurasa son of Sundaralakshmi or the adopted son alone should take my zamin vagaira and none else should take at any time.”

The will goes on to provide certain legacies for Sundaralakshmi for her marriage expenses, jewels etc. Then follows a recital of the provision made by the testator under a separate deed of settlement for the maintenance of the sixth defendant and her son and daughter (both since deceased) with the declaration already referred to that those properties are sufficient for them and nothing more need be given from the estates.

The codicil, Ex. D-2, made 11 years later, on 10th August 1926, recites that the daughter Sundaralakshmi became a widow without having any male issue, and that the testator married another wife, fourth defendant. It provides that in the event of his death leaving no male issue, the third defendant, the fourth defendant and the second defendant should successively be “Ranies and enjoy the honours in the order specified”. Then follow provisions “as regards heir” similar to those contained in Ex. D-20, that a son who might be born within 35 years to his daughter Neelambal Ammani should be adopted by the Ranis in the order mentioned, and if no son is born within 35 years a son born to another daughter Andal Ammani should be adopted under the same conditions. If the daughters fail to bring forth a male child, a son that might be born to the daughter of Sundaralakshmi (10th defendant) before her 40th year should be taken in adoption. Then follow certain legacies for the marriage expenses, jewels and stridhanam of the daughters Neelarnbal Ammani and Andal. The codicil then recites an additional provision made by the testator for the maintenance of the sixth defendant “who has now become a mother of several children i.e, the appellants and their sisters who were all born subsequent to the will, D-20 and concludes with the direction already referred to regarding adequate allowances being paid to them if the maintenance already provided is found insufficient.

It is argued for the appellants that there are no disposing words in the will or the codicil either in regard to the impartible estate or in regard to the separate property of the zamindar, and that the documents while directing an adoption provide certain merely declares that the properties should be enjoyed after his death by those who would take them under the Hindu law as on intestacy. We are unable to assent to this view. No doubt if an adoption was made, the late zamindar's properties would go to the adopted son as on intestacy, but in default of an adoption which so far has not been made, the provisions of the will disclose dispositions at variance with the scheme of intestate succession. For, under the will, the widows and the daughter are to be paid only certain allowances and “all my zamin vagaira properties” are to go to the daughter's son natural born or adopted, it is not therefore correct to say that the will does not purport to dispose of any properties but merely states that they should go to the late zamindar's heirs under the Hindu law. Whether the disposition in so far as it relates to the zamindari is valid and effective is another matter.

The learned Subordinate Judge is of opinion that the will operates as a valid disposition of all the properties of the zamindar including the impartible estate. This, in our opinion, is not correct. In view of S. 4 of the Madras Impartible Estates Act, 1904, the zamindar had no power to alienate the estate which is included in the schedule to the Act, so as to enure beyond his lifetime except for necessity. The learned Subordinate Judge based his view on Sub-S. 5 of S. 4 which provides that nothing in that section shall be construed to restrict the power of the proprietor to provide for the succession to the estate “in default of heirs.” This provision, however, had no application here as there were heirs to succeed to the estate—the widow or the illegitimate son, according to the final decision in these proceedings [cf. Konammal v. Annadana ]. The will must therefore be held inoperative so far as the zamindari is concerned.

This, however, does not effect the any disposition under the separate properties of the validity of will, of the separate properties of the zamindar if he has made such disposition. It is contended for the appellants that there are no apt words in the will which can reasonably be construed as a disposition of the separate properties of the zamindar as distinguished from the zamin. It is true that the will does not specifically refer to his separate properties, but it purports to dispose of “all my zamin vagaira properties” and these words are, in our opinion, wide enough to cover his separate properties. It was said that the word vagaira literally means “and others of the same kind” and, in the context, must be taken to refer only to the zamin, its appurtenances and accretions. We are unable to agree. The terms of the will and the codicil read as a whole clearly disclose an intention on the part of the zamindar not to leave any part of his properties undisposed of by his will. We agree with the learned Subordinate Judge that the tamil words used by the zamindar mean “the zamin and all other properties belonging to me” and are apt to cover whatever properties he died possessed of.

Lastly, it was suggested that even if the separate properties be held to have been disposed of under the will, such dispositions were void as they infringed the rule against perpetuities enacted in S. 114 of the Indian Succession Act. Under that rule the vesting of a gift cannot be delayed beyond 21 years from the termination of a life in being at the testator's death. Under Ex. D-20 the dispositions must necessarily take effect within the period allowed by the rule as the adoption must, if at all, take place within the lifetime of the last surviving widow, and the aurasa son or the adopted son of the daughter who is to take in default of adoption to the zamindar must come into existence before her death. Sundaralakshmi having died before 1926 leaving only a daughter, tenth defendant, the codicil Ex. D-2 directs, as already stated, the adoption of any of the other boys indicated therein. According to these provisions, too, the vesting must necessarily fall within the lifetime of the widows who alone can make an adoption to the zamindar. There is thus no force in the suggestion that the dispositions are void for remoteness.

In the result, the appeals succeed only so far as the appellants' right to maintenance out of the zamindari is concerned. It will be for the lower Court to determine what will be the proper rate of maintenance to be awarded to the appellants having regard to the provision already made by the late zamindar in that behalf, that question not having been considered by the learned Subordinate Judge. We direct that the causes be remitted to the lower Court for the purpose aforesaid. The parties will pay and receive proportionate costs in the appeals which will be provided for in the fresh decree to be passed by the lower Court. The Court below will also make provision in such decree for payment to the Government of the court-fee payable in respect of the appeals.

N.R.R