Appeal from a decree passed by the High Court of Judicature at Madras. The case will be found reported in 8 Mad., 157.

The facts are sufficiently set forth in the judgment of Lordships of the Privy Council (1) which is as follows:—

The question common to the three suits which have been solidated in the appeal before their Lordships is whether the plaintiff one Salugai Tevar, was entitled to recover from the defendant in possession, all of whom claimed to be purchasers for value ??? the late proprietor Dhorai Pandian, under different titles, ??? villages, being in fact all that remained of the ancient Palay of Padamattur, which seems to have consisted originally of villages.

The various questions which were raised and determined in three causes, in all of which there was judgment for the plaintiff were substantially the same. Of these some are no longer ??? and of those that are contested the only one that has ??? argued before their Lordships is whether Salugai Tevar had established a sufficient title to maintain the suits. It is upon this question alone that their Lordships have now to express their opinion.

Before doing so, however, they wish to make some observation upon the manner in which the Courts in India dealt with question, as appears from the following passage in the judge of the High Court. The learned Judges say: “The defendant not only denied the legitimacy of the plaintiff, but also ??? that Dhorai Pandian, the last proprietor, having left a ??? Vellai Nachiar, who is still alive, the right of suit is with and not with the plaintiff. The Subordinate Judge, ??? the suit not as raising any question between contending heirs as a suit brought to recover from strangers family property ??? fully alienated by a member, held that the plaintiff might subject to any question between himself and others concerning right to the inheritance. It appears to us that the right Dhorai Pandian's widow, which was the only right urged in Court below as prior to the plaintiff's cannot be maintained, the estate of Dhorai Pandian's was not a separate acquisition him, following the course of succession prescribed for estate, but an ancestral estate of the character already mentioned the right to which would vest on his death without issue in ??? male heir of the undivided family in preference low. In this Court the defendants have urged a new ??? objection to the plaintiff's competency to sue, which arise on the plaintiff's deposition given in the suit. It here that ‘there are preferential heirs to the estate, descendants of an elder branch of the family.’ We ??? the plaintiff, in his cross-examination, after mention of Ramalinga Shervai, the son of the Istimirar Zemindar, ??? was questioned in the suit of 1823, says that Respondent's, elder brother had two sons (by a kept mistress), there are three grandsons of his still living. The enquiry so far as is shown, fully pursued, nor was the Court asked upon the matter, and the issue already noticed respecting title of Dhorai Pandian's widow was alone tried and ???. A decision unfavourable to the defendants having been they now seek in appeal to bring forward, for the first time, ??? to the plaintiff's right to sue, which they declined to the Court below. We think they cannot fairly be ??? stage of the case to defeat the suit by such an objection, ??? are other and nearer heirs, their rights will remain ??? any decree to be now given may make reservation of ??? The plaintiff, for the purposes of the present suit, regarded as entitled to the succession, and it is unnecessary consider the arguments which were addressed to us on ??? of the course of descent of this property on the ??? that there were in existence descendants of his elder ???.

Lordships are of opinion that there is nothing to take ??? out of the general rule relating to actions in the nature ??? of ejectment, namely, the well-known rule that the ??? must recover by force of his own title. They think that be in the highest degree unjust to allow the defendants, ??? been for nearly the whole time of prescription in possesses ??? of which they claimed to be purchasers for value, ??? out of possession by any person other than one who ??? a clear title to present possession. To allow this ??? that, it there should turn out to be other persons ??? title than the plaintiff, those persons might recover over against him, is obviously to deprive the defendants of undoubted right to defend their possession by setting up ??? tertii, and it is further to be remarked that those persons possibly have been unable themselves to recover from the ??? ants by reason of having, by lapse of time or acts of confirm or acquiescence, lost the right to question their title.

With these observations their Lordships will pass to the consideration of the question before them, with reference to ??? will be sufficient to confine their observations to the ??? in the first and principal suit.

The particulars of the claim, as stated in the plaint, are the Palayapat of Padamattur was an impartible and ancient zemindar descendible by inheritance, according to the custom governing similar zemindaries and to the Hindu law; that it was last ??? by a person with many aliases, being the Dhorai Pandian ??? in the pedigree; and that he held the right of ruling it ??? 7th November 1861, when he died at Padamattur without ???. The title of the plaintiff to succeed to him is thus stated: ??? plaintiff being the son of the deceased Muttu Vaduganadha ??? who was the undivided brother of the said Gouri Vallabha ??? alias Muttu Sami, and of the deceased Bodhaguru Tevar, is the ??? son's son now surviving of Oiya Tevar,” who was the ??? ancestor. The plaint therefore asserts a title in the ??? succeed to the Palayapat on the death of Dhorai Pandian, and subsequently the right to impeach the alienation of the villages ??? by him. The nature and impartibility of the estate have found by the High Court confirming the decision of the ??? Court in these words: “We conclude that Padamattur is should be (apparently like other similar groups of villages in the ??? zemindari) a Palayapat impartible, and therefore held ??? member of the ‘family and descending on a single heir.’ ??? question remains whether, on the death of Dhorai Pandian in ??? the plaintiff of right became the Polygar. The facts stated ??? plaint relating to his descent from the common ancestor are ??? with the pedigree set out in the appellant's case, and ??? taken as proved. And it may be true that upon those facts he have been, according to the ordinary course of Hindu law of ??? the next heir to Dhorai Pandian in the collateral line ??? ??? if that person had left no widow, or if the widow were from the nature of her husband's estate incapable of inheriting it. It ??? however, be a question whether, putting the widow's possible right out of question, he would be entitled to succeed to the Palayapat. Nothing has been found by either Court in India as to the rule which governed the abnormal descent of Padamattur to a single heir. There is some evidence that up to the date of the transaction to be next considered it was governed in the course of direct descent from father to son, by the rule of primogeniture; but as to the rule in the case of collateral succession there is no evidence.

It may be desirable, before their Lordships approach the direct question to be decided, briefly to recapitulate some of the facts relating to this estate. Oiya Tevar, the then zemindar of Padamattur died in 1815. He was succeeded by his eldest son, Muttu Vaduga. That person had two brothers, and therefore, whether Oiya Tevar were previously joint with his brother Gouri Vallabha, the Istimirar Zemindar of Shivagunga, in respect of Padamattur or not, the latter estate must be taken to have descended to Muttu Vaduga as ancestral estate. He would, therefore, necessarily be joint in that estate, so far as was consistent with its impartible character with his two younger brothers, the latter taking such right and interests in respect of maintenance and possible rights of succession as belong to the junior members of a joint Hindoo family in the case of a raj or other impartible estate descendible to a single heir. Hence there can be no doubt that the estate, though impartible, was, up to the year 1829, in a sense the joint property of the joint family of the three brothers. In 1829, however, the uncle of the three brothers, who was zemindar of the great impartible zemindary of Shivagunga died. Padamattur appears to have been a sub-tenure of that estate, paying rent to the zemindar, and it was supposed that if Gouri Vallabha, the deceased zemindar, left no male issue, that large estate would go, according to the Mitakshara law of succession in the case of joint family property, to his eldest nephew, Muttu Vaduga, the then Polygar Padamattur. In consequence of this the family arrangement embodied in the document No. 77, set out at page 138 of the Record, took place. The true construction and effect of that document will be afterwards considered. At present it is sufficient to say that the effect of it was to transfer the ??? of Padamattur to the next brother, Muttu Sami, on whose it descended to his only son Dhorai Pandian, who enjoyed his death in 1861. In the meantime the great estate of ??? was enjoyed, first by Muttu Vaduga, next by his son and second son in succession, and lastly, by his eldest ??? by that second son. During all that time, however, the ??? concerning the title to Shivagunga, of which the history ??? found in the 9th volume of Moore's Indian Appeals, at page was going on. That was finally determined in 1863, ??? judgment of this Committee, which ruled that, thought zemindar of Shivagunga, who died in 1829, had continued generally undivided in estate with the family of his brother Tevar, the former Polygar of Padamattur, the zemindar Shivagunga was his self-acquired property, and, thereto ??? to his widows, and failing his widows, his daughter ??? to his nephew. The result of that decision was Shivagunga passed from the line of Muttu Vaduga, who ??? had transferred the Polygarship of Padamattur to his next ??? brother Muttu Sami.

In the present case the defendants, relying in some degree the final decision in the Shivagunga case, by their written ??? insisted that the title of the widow of Dhorai Pandian succeed to Padamattur on the death of her husband was ??? to that of the plaintiff. They founded this contention ??? transaction of 1829, whereby, as they alleged, Muttu ??? absolutely abandoned and renounced all his right to ??? in favour of Muttu Sami. They also alleged that for some prior to 1829 and since, the three brothers were divided in ??? and interest, and were living as divided members of a ??? family. This part of the defence led to the settlement of the 3rd, 8th, and 9th issues in the suit. The 2nd and 3rd “Whether Muttu Vaduga relinquished his interest in the sued for; and if so, what is the effect of such relinquishment the plaintiff's title?”

The 8th issue is, if the plaintiff be found son of Muttu Vaduga whether Muttu Vaduga and the last owner of Padamattur divided or undivided.” The 9th issue is, “Whether the ??? was entitled to bring this suit during the lifetime of the last ??? widow.” Those issues of course involved two distinct questions, namely, first, whether Muttu Vaduga was for all purposes ??? from his brothers; and, secondly, whether he had not at ??? so parted with all interest in Padamattur as to make that particular property as between his descendants and Dhorai Pandian ??? separate estate of the latter, and so subject to the rule of ??? affirmed by the decision of this Committee in the Shivagunga case. In the course of the trial a further objection was ??? to the plaintiff's case on facts which came out in the course of his cross-examination. That objection was briefly to this effect, ??? though he was the only surviving son of Muttu Sami, there ??? sons and grandsons of one of his elder brothers who, as ??? plaintiffs contended, would have a preferential title to Padamattur even the assumption that Padamattur was to pass as ??? property. That question, although no issue in the suit had ??? settled with respect to it, was distinctly raised by the grounds appeal. The High Court nevertheless declined to adjudicate ??? it, for the reasons stated in the passage of their judgment, ??? has been already road. Their Lordships think that, if there ??? not sufficient materials before the Court to enable the learned ??? to decide the question thus raised, they ought to have ??? an issue in order that the facts essential to such determination should be ascertained.

Their Lordships will consider in the first instance the first of ??? two objections which have been thus taken to the plaintiff's ??? viz., the preferential title of the widow. In doing this they ??? assume that the Indian Courts have correctly found that ??? 1829 the status of the family, consisting of Muttu Vaduga, two brothers and their children, continued to be joint and ??? and, consequently, that the only question is, whether by ??? of the transaction in 1829 the particular property of ??? ceased to be the joint property of the three brothers, ??? so upon the death of Dhorai Pandian became subject to ??? rule of succession already referred to as affirmed by this ??? in the Shivaguuga case. That question, of course, ??? on the construction to be put on the instrument at ??? 138 of the Record.

Now, various constructions have been put upon it. The first was that of the Subordinate Judge. He says, at page 296, “Although the relinquishment (taking it to be true) was thus rendered absolute,”—he is referring to the birth of the daughter of the deceased zemindar of Shivagunga,—“and kept Muttu Vaduganadha and his offspring out of the Padamattur estate for a time, yet, as they were judicially pronounced to come into the Shivagunga estate as usurpers, and were ousted from it, Muttu Vaduganadha's heir or heirs are entitled to revert, to the Padamattur estate.” This construction, their Lordships think, cannot be maintained. There are no words which import a right of reversion. The true construction of the document cannot be affected by what happened subsequently. The grant, whatever its effect, was not necessarily avoided, because subsequent events disappointed the expectation in which it was made, namely, that the estate of Shivagunga would remain in the line of Muttu Vaduga. One consequence of that construction and of the adoption of the doctrine of reverter might be to give force to the defendant's second objection, because it would assume—if indeed such an assumption could be made consistently with what was ruled here in the Tagore case—that a certain reversion remained in Muttu Vaduga; in which case it would be a grave question whether that reversion did not descend to his descendants in the direct line according to the law of primogeniture. Another construction was put upon the instrument by the High Court at page 329. Dealing with this part of the defence the learned Judges say: “The appellant's contention on this part of the case we understand to be that the instrument of relinquishment precludes all claims on the part of Muttu Vaduganadha's descendants that the family can no longer be regarded, as they admittedly were originally as a joint and undivided Hindu family, and that under the terms of the Limitation Act XIV, of 1859, the plaintiff's claim is barred, because Muttu Vaduganadha and his defendants are not shown to have participated in the income or profits of Padamattur since the year 1829. Although the fact of the division of the family in or before the year 1829 was alleged by the defendants in their written statement, no evidence of this was adduced, and it is only from the mode of enjoyment of the ??? and from the effect attributed to the instrument of ??? that this is inferred. We think it clear that the ??? must still be regarded as a joint Hindu family, and that ??? Vadugauadha's renunciation of his right in 1829, what ??? operation on himself and his descendants in possession of zemindari of Shivagunga, cannot operate further, and that, ??? the death of Dhorai Pandian without issue, the right of ??? which then opened to the members of this joint ??? was not affected by such renunciation. The words “We ??? offspring shall have no interest in the said Palayapat, ??? alone shall be the zemindar, and rule and enjoy the must be coos trued with due regard to the person using and the occasion when they were used. They refer to ??? and rights of the new so-called zemindar of ??? and amount to a declaration that the Palayapat shall be ??? by him exclusively, the Shivagunga zemindar disclaimed joint interest. They are not a release by the latter for ??? and his heirs of all future rights of succession, which ??? accrue to them as members of an undivided family.” The ??? sentences do not appear to their Lordships to be quite ???. If the Shivaguuga zemindar had disclaimed any joint ??? his words of renunciation taken alone would seem to ??? that he had given up whatever interest he had, as a ??? of the joint family, in that estate. Their Lordships that such a renunciation would not deprive the descendants ??? Vaduga of such future rights of succession as they ??? afterwards have to that property, treating it as separate party quoad them,—such a right of succession, for instance, ??? accrue to them in the present case upon the death of widow. But it does seem to be inconsistent with the ??? them, “of all future rights of succession which might ??? to them as members of an undivided family.” The ??? of the instrument for which Mr. Cowie argued at the ??? not substantially differ from that of the High Court. Contended, as their Lordships understood, that the only ??? of the transaction was to transfer the ostensible headship ??? family, as regarded Padamattur, to the second brother and ??? descendants and so virtually to reduce the position of Muttu Vaduga and his heirs to that of a junior line. ??? however, is not the construction which, after some ??? Lordships think must be put upon the document. The ??? of it is in these words: “Agreement passed on” such a ??? me Oiya Tevar's son Muttu Vaduganadha Tevar of ??? in favour of my brother Gouri Vallabha Tevar.” It ??? thus: “My junior paternal uncle Muttu Vijaya ??? Gouri Vallabha Peria Udaya Tevar, zemindar of Shivagunga having departed this life, leaving no male issue, I have ??? entitled to the said zemindary, and you, as my next ??? brother, are appointed zemindar of the Palayapat of ??? Padamattur.” It then refers to the pregnancy of ??? uncle's wives, and says, “I shall act as usual in the ??? the event of her giving birth to a son.” Those words ??? where the grantor meant to make a gift on a condition ??? very well how to express what the condition was to be; ??? affords an additional argument against the construction ??? the document by the Subordinate Judge. Then follow clause:—“But should she be delivered of a daughter”— ??? which happened—“I and my offspring shall have no ??? in the said Palayapat, but you alone shall be the zemindar rule and enjoy the same, allowing at the same time, as per agreement, to the younger brother, P. Bodbagarusami ??? who in the pedigree is called Chinna Sami,—the village has been assigned to him before.” Now the plain ??? those words seems to their Lordships to be that Muttu ??? renounces for himself and each of his descendants all ??? the Palayapat either as the head or as a junior member joint family, whilst at the same time he reserved ??? rights of the youngest brother, Chinna Sami. The effect, ??? of the transaction, in their Lordships' opinion, was to ??? particular estate the property of the two instead of the three ??? with, of course, all its incidents of impartiality and ??? of descent, and to do so as effectually as if in the case ordinary partition between the brother, on the one hand, ??? two younger brothers on the other, a particular property fallen to the lot of the two.

This construction seems to their Lordships to be ??? rather than weakened by the subsequent clause as to the debts. He says: “As regards any debt contracted by me during the time that I was semindar of the said Palayapat you shall have no concern at all therewith, but I shall myself be responsible for the same.” That clause reads as if he wished to transmit the Palayapat, in which he had abandoned all interest, to his brothers, cleared of the debts incurred by himself as Polygar, whatever might have been their nature, and whether they were a change upon the estate or not. Their Lordships see no great improbability in such a transaction. Muttu Vaduga believed himself to be, by a title not then disputed, the proprietor of the large and valuable estate of Shivagunga. He might, therefore, well be content to abandon in favour of his brothers all his interest in the comparatively inconsiderable sub-tenure of which, as zemindar of Shivagunga, he had become the superior landlord. That he should have done so and have afterwards lost Shivagunga, no doubt, a misfortune for his family, and would be the greater subject of regret if the Polygarship of Padamattur sow carried with it anything more than the right of disputing transactions which were very possibly entered into by the parties in the bond fide belief that Dhorai Pandian had became sole owner of the estate; as, if their Lordships' construction of the document is right, he would have become the death of Chinna Sami without issue. But this unfortunate consequence cannot, in their Lordships' view, affect the construction of the document which must be considered by the light of the circumstances as they existed at the time of its execution.

Again, their Lordships may observe, their construction of the instrument is somewhat corroborated by what seems to have been the understanding of the family. It appears at page 71 of the Record that in the suit in which Muttu Vaduga's eldest son, Muttu Sami, and Chinna Sami were sued together for debts ??? to be a charge upon the Palayapat, both the first and the second defendants invoked the transaction of 1829, the first contending that, as his father had transferred the estate to his brothers, the second and third defendants, he was no longer responsible for the debt; Muttu Sami, on the other hand, relying on the clause in the deed of 1829 by which Mutta Vaduga had agreed to take such debts upon himself.

Then again, in the cases that are found at pages 195 and 197 of the Record, in which Chinna Sami first, and afterwards widow, were so ill advised as to raise the question of the partibility of Padamattur, the suits seem to have been brought against the representatives only of Muttu Sami, and the representatives of Muttu Vaduga are treated as having no interest in the matter. And, lastly, their Lordships' construction is in some degree further confirmed by the acquiescence of the plaintiff himself for nearly twelve years in the conveyances and transactions which he now seeks to impeach.

Their Lordships then have come to the conclusion that, as between the descendants of Muttu Vaduga and Dhorai Pandian the Palayapat was the separate property of the latter; that on the death of Dhorai Pandian, his right, if he had any left undisposed of in the property, passed to his widow, notwithstanding the undivided status of the family; and that therefore the case was one to which the rule of succession affirmed in the Shivagunga case applies.

It follows, therefore, that their Lordships dissent from the finding of the two Indian Courts on the 9th issue, and hold that the plaintiff had no title to sue in the life of the widow of Dhorai Pandian. This being so, it is unnecessary to consider the other objection taken to the plaintiff's title. That objection involves considerations of some difficulty which perhaps could hardly be satisfactorily determined without further evidence as to the customary rule of succession to Padamattur.

Their Lordships will humbly advise Her Majesty to reverse the decrees of both the High Court and the Subordinate Court, and to dismiss the three suits, with costs in both Courts. The appellants must also have their costs of the appeals; but in taxing those costs the Registrar must set off against the amount of costs payable by the respondents the taxed costs of the application to bring in fresh evidence, which were in any case to be borne by the appellants.