CHINNATHAYI ALIAS VEERALAKSHMI v. KULASEKARA PANDIYA NAICKER AND ANOTHER
Citation: [1952] 1 S.C.R. 241; 1951 INSC 57
Court: Supreme Court of India
Bench: MEHR CHAND MAHAJAN , SIR SYED FAZL ALI, N. CHANDRASEKHARA AIYAR
Judgment date:
Case summary
1951 INSC 57. Supreme Court of India judgment dated 1951-12-14. CHINNATHAYI ALIAS VEERALAKSHMI v. KULASEKARA PANDIYA NAICKER AND ANOTHER. Read the judgment...
Judgment text
• S. C. R. SUPREME COURT REPORTS CHINNATHAYI alias VEERALAKSHMI ti. KULASEKARA PANDIYA NAICKER AND ANOTHER (and connected appeals) [SAIYID FAzL Au, MEHER CHAND MAHAJAN and CHANDRASEKHARA AIYAR JJ. ] 241 lmpartible estate-Succession-Extinction of branch-Disputes 11S to succession-Compromise-Construction of deed-Disruption of family-Renunciation of right to succession by junior membePs of other branches-Sufficiency of evidence-Right to effect partitiQ1l- Eff ect of general words of release. · To establish that an impartible estate has ceased to be JOint family property for purposes of succession it is necessary to prove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the estate. In each case it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant's branch in the estate was determined so that it became the separate property of the last holder's branch.
The test to be applied is whether the facts show a clear intention to renounce or surrender any interest in the impartible estate or a relin- quishment of the right of successsion and an intention to impress upon the zamindari the character of separate property. The right to bring about a partition of an impartible estate cannot be inferred from the power of alienation that the holder thereof may possess. In the case of an impartible estate the power to divide it amongst the members does not exist, though the power in the holder to alienate it is there, and from the existence of the one power the other cannot be deduced, as it is ,... destructive of the very nature and character of the estate and makes it partible property. A member of a joint family owning an impartible estate can on behalf of himself and his heirs renounce his right of succession but any such relinquishment must operate for the benefit of all the members and the surrender must be.
in, favour of all the branches of the family as representing all its members. General words of release in a release deed do not mean release of rights other than those then put up, and have to be limited to the circumstances which were in the contemplatiqn of the parties when it was executed. 1951 Dec. U. 1951 Chinnathayi alias Veeralak. shmi v. Kulasek. ara Pandiya Naick. er and Another. 242 SUPREME COURT REPORTS [1952] On the death of the holder of an impartible estate who repre- sented the first branch his widow K got into possession claiming that the estate was the separate property of her hu. sband and also under a will. Disputes arose between her and the members of the 2nd, 3rd and 4th branches of the family and these were settled amicably.
S who \Vas the senior member of the 3rd branch obtained village D and one-fourth of certain pannai lands as absolute owner and executed a release deed on 6th May, 1890, in these terms : "Whatever rights over the said zamin proper- ties and in all other abovementioned properties S might possess he gives up such rights absolutely in favour of the said K and her heirs enabling them to enjoy them with the power of aliena- have no claim at all to the properties shown as belonging to K. " KS Who represented the 2nd branch and had instituted a suit tion thereof by gift, sale etc.. . . . . . . .
The said S and his heirs shall against- K compromised the suit on the 10th May, 1890, under a deed which provided inter alia: (i) that the zamindari shall be enjoyed by K till her lifetime and that KS and his heirs shall after the lifetime of K enjoy the zamindari except village D 'vhich was given to S; (ii) village B and one-fourth of certain pannai lands shall be given to KS absolutely ; (iii) all other pannai lands, build- ings and movables which belonged to K's husband shall be enjoyed by K and her heirs absolutely. " On the death of K the estate became vested in Z, the son of KS. The death of Z without _issue the second branch became extinct and disputes arose with regard to the ownership of the pannai lands and buildings, village B, and the zamindari between the widow of Z (who was the grand-daughter of K) and the senior members of the 3rd and .
4th branches : Held (i) that as KS was competent to alienate the pannai lands and buildings in favour of K and vest her with absolute title, and S had also agreed to give them to her absolutely, K became the absolute owner of these lands and buildings and these ceased to be part of the joint estate and devolved on the grand-daughters of K as her stridhana heirs. ' (ii) In view of the arrangement of 1890 it was not open to any of the parties to deny that the village B was separated from the zamindari and given to KS absolutely as his private property. rhe village consequently devolved on z as separate property and on his death it devolved on his widow. . (iii) The arrangement made in 1890 did not evidence a parti- tiOn amongst the' members of the joint family or prove an inten. tion on the part of the junior members of the family to renounce their expectancy of succession by survivorship on failure of the male lineal descendants in the branch of KS.
(iv) That the recitals in the release deed executed by S had to be read in the light of the compromise in the suit of ·Ks, and the • • +- ~' ,, . c ... • S. C. R. SUPREME COURT REPORTS 243 proper inference from both the documents read together was 1951 that S renounced only his right to succeed to the zamindari immediately as the seniormost member of the family and that Ckinnat! tayi he. did not renounce his right or the right of his branch to succeed alias to the zamindari by survivorship if and when occasion arose ; Veeralaksltmi the senior member of the 3rd branch was therefore entitled v. to succeed to the zamindari in preference to the senior member Kulasekara of the 4th branch and the widow of Z. Pandiya Naicker Vadrevtt Ranganayakamma v. Vadrevt1 Bttlli Ramaiya (5 C. L. R. and Another •. 439), Sivagnana Tewar v. Periasami (5 I. A. 51) and Thakurani Tara Kumari v. Chaturbhttj Narayan Singh ( 42 I. A. 192) dis- tinguished. Sartaj Kttari's case (15 I. A. 51), Konammal v.
Annadana (55 I. A. 114), Collector of Gorakhpur· v. Ram Sunder Mal (1. L. R. 56 All. 468 P. C. ), Sri Raja Lakshmi Devi Garu v. Sri Raja Surya Narayana (I. L. R. 20 Mad. 256 P. C. ) and Directors etc. of L. & S. W. Ry. Co. v. Richard Doddridge (L. R. 4 H. L. 610) referred to. The ludgment of the Madras High Court affirmed. CIVIL APPELLATE JurusDicTION: Civil Appeals Nos. 29 to 33, 89 and 90 of 1949. Appeals from the Judgment and Decree dated the 30th October 1945 of the High Court of Judicature at Madras (Lionel Leach C. J. and Rajamannar J. ) in Appeals Nos. 230, 300-302, 355, 356 and 413 of 1943. G. S. Pathak (T. S. Santhanam, with him) for the appellant in Civil Appeals Nos. 28 and 29 of 1949, respondent No. 1 in Civil Appeals Nos. 30, 32 and 33 of 1949 and respondent No. 2 in Civil Appeal No. 31 of 1949, for respondent No. 3 in Civil Appeal No. 31 of 1949 and for respondents Nos. 1 and 2 in Civil Appeals Nos. 89 and 90 of 1949. V. V.
Raghavan, for the appellant in Civil Appeals "' Nos. 31 to 33 of 1949, respondent No. 1 in Civil Appeals Nos. 28 and 29 of 1949 and respondent No. 2 in Civil •, Appeal No. 30 of 1949. B. Somayya (K. Subramaniam and Alladi Kuppu- swami, with him) for the appellant in Civil Appeals Nos. 30, 89 and 90 of 1949, respondent No. l in Civil Appeal No. 31 of 1949 and respondent No. 2 in Civil Appeals Nos. 28, 29, 32 and 33 of 1949. 1951. December 14. The Judgment of the Court . was delivered by MAHAJAN J. 1951 Chinnathayi alias Veeralakshmi v. Kulasekara P•ndiya Naicker and Another. Mahajan f. 244 SUPREME COURT REPORTS [19521 MAHAJAN J. -These eight appeals arise out of a common judgment of the High Court of Madras dated the 30th October, 1945, given in seven appeals pre- ferred to it against the judgment of the District Judge of Madura in four suits, O. S. Nos.
2, 5, 6 and 7 of 1941, all of which related to the zamindari of Bodinaickanur in the Madura district and the properties connected therewith. The appeals were originally before the Privy Council in England, some by leave of the High Court and others by special leave and are now before us for disposal The zamindari of Bodinaickanur is an ancient im- partible estate in the district of Madura, owned by a Hindu joint family. The genealogical tree of the family is as follows :- - " ~ ·' . I . 1· Chumathay1 a ias Vecralakshmi Ammal {2nd Deft. ) T. V. K. Kamaraja PandiaNaieker, late Zamindar \; I Satpur Zamindar I . I . V1swanathaswam1 Naicker (Died) Thirumalai Muthu Vijaya Dalapathi Pa. ndiya Naicker (Died) T. B. S. S. Ra. ja~a Pa. ndiya Naicker (Plainti,ft) j ' .. .! ......... . (4) (5) . I . I Kulasekara Pand1a Chokkalinga,ami Naicker (No. I) Naicker (Died (Died after 10-5-1889 after 10-5-1889 but before 1902) but before 1902) I I ~I~-----'-----;!
Bangaruswami Kulasekara Pandiya Muthu Naicker (Died Naicker (No. 2) Bangaruswami before 1902) (Died before 1902) Naicker (Died) I I V. ~ulasel~iua I -~--[ Pand1ya Na 1 cker Vadamalai Thirumalai (! st Deft. ) Muthu Boda ya Kula>ekara Sundararaja Pandiya Pandiya Naicker Naicker I Tiruma! Ji Bodaya Sundararaj Pandiya N aicker (Died) I I. . Chokkahngasam1. Naicker (Died) T. lJ. Kamaraja Pandiya Naicker I . T. J). M. S. K. Pand1ya Naicker r Pandiya Raja Naicker Seelaraja 1 Pandiya Naicker (Died Seela 1 Bodi Na! cker I Kamaraja Pandiya Naicker (Died) on 25-9-1931) I Ch ,_, __ ,. I . o ........ 1ngaswam1. Na! cker ~ ~ a;:: tT1 8 d ~ ~ ~ Vl ~ 1951 Chinnathayi alias Veeralak_shmi v. Kulasekara Pondiya Naicker and Another. Mahaian J. 246 SUPREME COURT REPORTS [1952J The zamindari was last held by Kamaraja II of the second branch.
He died on 16th February, 1941, without male issue, but leaving him surviving a widow Chinnathayi alis Veeralakshmi Ammal, and members of the family belonging to the third, fourth and fifth branches. Succession to the zamindari_ is admittedly governed by the rule of lineal primogeniture modified by a family custom according to which the younger son by the senior wife is preferred to an elder son by a junior wife. According to this custom T. B. S. S. Rajaya Pandiya Naicker of the third branch was entitled to the zamindari after the death of Kamaraja II of the second branch. His claim was denied by the widow and by Kulasekara Pandiya Naicker of the fourth branch, both of whom claimed the zamindari on different grounds. It was alleged by the widow that the zamindari was the separate and exclusive property of her husband and that being so, she was entitled_ to it under the rule of Mitakshara applicable 1b devolution of ,separate property.
Kulasekara of the fourth branch claimed it on the basis that Sundara Pandiya Naicker of the third branch who died in 1893, had separated from the family and had renounced his and his descendants' rights of succession to the zamindari and the third branch having thus lost all interest in the joint family zamindari, he was the next person entitled to it by survivorship. On 28th April, 1941, the revenue officer allowed the claim of Kulasekara and held that he was entitled to possession of the zamindari and the pannai lands (home- farm lands) which were in the possession of Kama- raja II. As regards one of tl1e villages comprised in the zamindari, viz. , Boothipuram, tlie title of the widow was recognized. In pursuance of tliis order, Kulasekara got into possession of the zamindari and the pannai lands after the death of Kamaraja II. Boothipuram village remained in the possession of the widow. Dissatisfied with the order of the revenue officer, the parties have instituted_ .
the suits out of which these appeals arise. -. ' • ' ' S. C. R. SUPREME COURT REPORTS 247 On the 22nd June, 1041, the widow (Chinnathayi) brought suit No. 5 of 1941 for possession of the zamin- dari against Kulasekiara of the fourth branch, Rajaya and his uncle Seelabodi Naicker of the third branch, T. B. M. S. K. Pandiya Naicker and Kamaraja Pandiya Naicker of the fifth branch, on the allegations set out above. On the 4th July, 1941, she and her sister instituted suit No. 2 of 1941 against the same set of defendants for cancellation of the deed of release that had been executed by her and her sister in favour of Kamaraja II on the 9th June, 1934, in respect of the pannai lands that were in the possession of Kulasekara of the fourth branch under the order of the revenue officer. The third suit, 0. S. No ..
6 of 1941, was brought by Rajaya of the third branch on 27th August, 1941, for possession of the zamindari, Boothipuram village and the pannai lands, against Kulasekara of the fourth branch and the two plaintiffs in suit No. 2 of 1941, on the allegation that under the rule of lineal promogeni- ture he was the person next entitled to succeed to the zamindari after the death of Kamaraja IJ. The last suit, 0. S. No. 7 of 1941, was instituted by Kulasekara of the fourth branch on 13th Oetober, 1941, against the widow and Rajaya, his rival claimants to the zamindari for a declaration that he was the right- ful heir and successor to the zamindari and was entit- led to possession of Boothipuram village registered in the name of the widow. The zamindari of Bodinaickanur originally consisted of fifteen villages mentioned in schedule (A) to the plaint in 0. S. No. 6 of 1941 and of certain pannai (home farm) lands and buildings. Tirumalai Bodi Naicker was the holder of this impartible raj.
He was succeeded by his son Rajaya Naicker who died in 1849, leaving him surviving five sons, Bangaru Tirumalai Bodi Naicker, Viswanatha Naicker. , Sundara Pandiya Naicker, Kulasekara Pandiya Naicker and Chokka- lingaswami Naicker, representing the first, second, third, · fourth and fifth branches respectively; Rajaya 1951 Chinnathayi alias V eeralakshmi v. Kulasek_ara Pandiya Naicker and Anotht:r. Mahajan /. 1951 Chinnathayi alias V erralakshmi v. Kulasekara Pandiya Naicker and Another. Mahaia'n /. 248 SUPREME COURT REPORTS [1952] Naicker was succeeded by his eldest son Bangaru Thirumalai Bodi Naicker who died on the 27th Octo- ber, 1862, and was succeeded by his son. T. B. Kama- raja Pandiya Naickier (Kamaraja I) who remained as zamindar till his death on 15th December, 1888. He had no son and on his death his widow Kamulu- ammal got into possession of the estate.
Proceedings for transfer were taken in the revenue court for regis- try of the zamindari and statements of the male mem- bers of the family belonging to the second, third fourth and fifth branches and of the widow were re- corded by the Deputy Collector. On 18th December, 1888, the representatives of these branches stated that they had no objection to Kamuluammal enjoying the zamindari. On the 19th Kamuluammal asserted that her husband by his will had bequeathed the zamini. dari to her and· had given her permission to make an adoption. On the same date the representatives of all branches of the family made a joint statement before the Deputy Collector. The relevant portion of it is in these terms :- "We fonr persons are his heirs to succeed and yet we agree to his widow Kamuluammal taking and enjoying the above said zamin and all other proper- ties save the undermentioned lands set apart for our maintenance.
Remission of the tirwah of the said lands allowed to us and of the tirwah of the lands regis- tered in our nathes and enjoyed till now, should be granted to us. " 544 kulies of pannai lands under the Bangaruswami tank and tl1e Marimoor tank were earmarked for the maintenance of the four branches. The widow made a statement on 20th accepting this arrangement The Deputy Collector submitted his report on the 5th of January, 1889, to the Collector upholding the Will. The Collector in his turn also recorded the state- ments of the representatives of the several branches of the family. Persons representing the third, fourth and fifth branches adhered to the previous statements made by them but Kandasami of the second branch resiled from his earlier statement and asserted that the ' ,, ' S. C. R. SUPREME COURT REPORTS 249 family being divided he was the next heir to the zamindari. No notice was taken in these proceedings of Vadamalai, the half-brother of Kamaraja I.
Sundara Pandiya's statement before the Collector on the 9th January, 1889, was in these terms :- "The wish of the family is that the widow should be in charge of the estate. I know nothing about the execution of the will. After the death of the widow, the next heir should succeed. He is Kandaswami, son of Viswanathaswami Naicker, my eldest brother, deceased. " To the same effect were the statements of Kulasekara of the fourth branch and of Chokkalingaswami of the fifth branch. Kandaswami's statement was recorded on the 14th January, 1889, and he said as follows :- "I am the next heir to the zamin, the family being undivided. I must get it. " He repudiated his earlier statement on the ground that at that time he was ill and was drowned in sorrow and "some rogue imitated his signature" and put it• on his previous statement.
The revenue Officer ordered that the widow's name be registered as the next person entitled to the zamindari subject to any order that the civil court might make in the case. On the 1st May, 1889, Kandasami filed 0. S. No. 16 of 1889 in the court 0£ the Subordinate Judge of Madura impleading the widow and the Collector as defendants for recovery of the entire zamindari as it then existed, including the villages of Boothipuram and Dombacheri and the pannai lands. He alleged that he as a member of the undivided Hindu family was entitled to rncceed to the zamindari by survivorship and in accordance with the established rule applicable to the devolution of this zamindari. Kamuluammal denied this claim and asserted that the zamindari was the separate property of her husband and she was entitled to it in preference to her husband's collaterals. She also based her claim on the alleged will of her husband.
Sundara Pandiya of the third branch laid a claim to the zamindari and the 1951 Chinnatha'ft alias Vecralakshmi v. Kulastkfhll Pandiya Naid(er and Another. Mahajafl f. 1951 Chinnathayi alias Veeralakshmi v. Kulasekara Pandiya Naicker and Another. Mahaian '}. 250 SUPREME COURT REPORTS [1952] pannai lands on the ground that he as senior in age amongst the family members was entitled to them in preference to Rajaya on the rule of simple primogeni- ture. In view of the pending and threatened litigation the contesting parties thought it fit to end their dis- putes by a mutual settlement beneficial to all of them. Sundara Pandiya was the first to strike a bargain with the widow. On the 6th May, 1890, a deed of release (Exhibit P-17) was executed hy him in favour of Kamuluammal incorporating the terms of the agreement. He managed to get from her in considera- tion of the release the village of Dombacheri absolutely for himself and his heirs.
She bound herself to pay the peishkush and road cess of the said village without any concern about that on the part of Sundara Pandiya. He was also allowed to enjoy free of rent from generation to generation with power of alienation by way of gift, sale etc. the one-fourth share in the' pannai lands under the irrigation of the Bangaruswami tank and the Marimoor tank and · mentioned in the joif\t statement made by tl1e several branches of the family before the Deputy Collector in December 1888. Over and above tbis, he received a cash payment of Rs. 3,000. With the exception of Dombacheri village and of the one-fourth share in the said pannai lands, all the other properties which belonged to Kamaraja I were to be held and enjoyed with all rights by Kamuluammal and her heirs with the power of aliena- tion thereof by way of gift, sale etc. absolutely.
The fourth clause of the release is in these terms :- "Whatever rights over the said zamin Rroperties :ind in all the other abovementioned properties, the said Sundara Pandiya Naicker Avargal might possess, he gives up such rights absolutely in favour of the said' Kamuluammal Avargal and her heirs enabling them to enjoy them with the power of alienation thereof by way of gift, sale, etc. and whatever rights the said Kamuluammal might possess over the Dombacheri village and over the lands lying under the 1rngation of the Bangarusami tank and the Marimoor tank and specified i,n the third colmru1 of the schedule hereto, • .. • _,. ,>... ;io • .. ' a_1 S. C. R. SUPREME COURT REPORTS 251 which are given up to the aforesaid Sundara Pandiya- Naicker A vargal, the said Kamuluammal Avargal hereby gives up such rights absolutely in favour of the said Pandiya Naicker Avargal and his heirs, enabling them to enjoy them with the power of alienation thereof by way of gift, sale etc.
" Clause 5 runs thus :- "The said Kamuluammal and her heirs shall have no claim at all to the properties shown as belonging to Sundara Pandiya Naicker Avargal as aforesaid and the said Sundara Pandiya Naickier Avargal and his heirs shall have no claim at all to the properties shown as belonging to the said Kamuluammal Avargal. " This deed was presented for registration on JOth May, 1890. On the same day O. S. No. 16 of 1889, i. e. , Kandasami's suit, was also compromised. Exhibit P-18 contains the terms of that compromise. The following are its important provisions :- (a) the zamindari shall be enjoyed by Kamulu- ammal till her lifetime and she shall have no right to mortgage those properties in any way prejudicial to the plaintiff.
(b) Kandasami and his heirs shall after the life- time of Kamuluammal, enjoy the zamindari excepting Dombacheri village together with such rights if any as the first defendant Kamuluammal may have acquired under the deed of release executed between her and Sundara Pandiya. ( c) Boothipuram village shall be given plaintiff by Kamuluammal so that she may with absolute rights. The entire peishkush road cess for the entire zamindari inclusive of village shall be paid by Kamuluammal. to the enjoy it and the the said ( d) The one-fourth share in pannai lands situated on the irrigation areas of Bangaruswami tank and Marimoor tank shall be enjoyed by Kandaswami and his heirs with powers of alienation and with absolute rights. ( e) Rs. 35,000 shall be paid to Kandasami by Kamuluammal. 1951 Chinnathayi alias Veeralakshmi v. Kulasekara Pandiya Nait:ker and Another. Mahajan f. 1951 Chinnatht;yi alias Veera}akshmi v. Kulasekt;ra P~ndiya Naicker 1111d An. other.
252 SUPREME COURT REPORTS [1952J ( f) All the other pannai lands, buildings and movables which belonged to the deceased Kamaraja Pandiya Naicker shall be held and enjoyed by Kamulu- ammal and her heirs with powers of alienation etc. and with absolute rights free from any future claim on the part of Kandaswaini and his heirs. (g) The movable and immovable properties which may be acquired hy Kamuluammal from out of the income of the zamindari shall belong to her with power of alienation etc. and shall go to her own heirs after her lifetime. (h) Kamuluammal shall not make an adoption. By the proceedings taken before the Collector and by the arrangement made under Exhibits P-17 and P-18, the disputes that had then arisen in the family were settled. Kamuluammal, however, did not with good grace part with the properties which she had agreed to give to others under the arrangement. The terms of the compromise had to be enforced against her by a number of suits and actions one by one.
Be that as it may, it is not denied now that the arrangement arrived at was eventually acted upon. Kandasami and his sons enjoyed the Boothipuram village and one-fourth of the pannai lands in the two tanks abso- lutely. Sundara Pandiya and his descendants enjoyed Dombacheri and one-fourth pannai lands, the fourth and fifth branches obtained possession of one-fourth share of the pannai lands under the two tanks. Kamuluammal secured revenue registration and re- mained in possession of the property down to the date of her death on 13th January, 1921. On her death the estate becaine vested in the possession of Kamaraja. II, the sole male representative of the second braP. ch, his father Kandasami and his brother Viswanatha- swami having predeceased Kamuluammal. He had been. married to Chinnathavi (Veeralakshmi) one of the. grand-daughters of Kainuluainmal during her lifetime. In the year 1925, the zamindar of Saptur, the son of Kamulu's deceased daughter Meenakshi, instituted • • •. ...
• S. C. R. SUPREME COURT REPORTS 253 0. S. No. 7 of 1925 against his sisters, Chinnathayi and Periathayi, and Kamaraja II, for recovery of the pannai lands and buildings which had vested abso- lutely in Kamulu under the compromise decree, on rove an intention, express or implied, on the part of the junior members of the family to give up their chance of succeeding to the esta,te. In each case, it is incumbent on the plaintiff to adduce satisfactory grounds for holding that the joint ownership of the defendant's branch in the estate was determined so that it . became the separate property of the last holder's branch. The test to be applied is whether the •• ·• . . t • ... .. S. C. R. SUPREME COURT REPORTS 261 facts show a clear intention to renounce or surrender any interest in the impartible estate or a relinquish- ment of the right of succession and an intention to impress upon the zamindari the character of separate property.
Reference in this connection may be made to the decision of the Privy Council in Konammal v. Annadana(1). In that case on ~he death of a holder, his elder son being feeble in mind, his younger son succeeded to the zamindari by an arrangement with the adult members of the family in the vear 1922. The estate then descended from father t~ son till 1914 when the junior branch became extinct and possession was taken by a senior member of the branch who ·claimed it by survivorship, while the mother of the last holder claimed the estate as an heir to separate property, and it was held that the setting aside of the elder son in 1822 did not deprive his descendants of their rights as. members of the family to succeed on failure of the junior branch.
In this case there was complete passing over of one branch of the family to succession vested in the next junior branch ; yet · when that branch failed, the members of the senior branch were held yet to possess their right to succeed to the zamindari by survi~ vorship. In Collector of Gorakhpur v. Ram Sundar Mal(2), the claim of a Hindu to succeed by survivorship to an ancestral impartible estate was in issue in the suit. The family admittedly had been 1omt. It appeared that the common ancestor of the deceased holder and of the claimant had lived 200 years before the suit, that for a long period there had been a complete sepa- ration in' worship, food and social intercourse between the claimant's branch of the family and that of the deceased holder, and that upon the death of the holder the claimant had not disputed that the widow of the deceased was entitled to succeed. It was held that there was not to be implied from the circumstances (1) (1928) 55 I. A. ll4. (2) (1934\ l. L. R.
56All. 468 (P. C. ). 1951 Chinnathayi alias Veeralakshmi v •. Kulasekara Pandiya Naic'k_er and Another. ·Mahajan /. 1951 Chinnathayi alias Veeral~kshmi v. / Kulasekara Pandiya Naicker . and Another. . Mahajan /. 262 SUPREME COURT REPORTS [1952] stated above a renunciation of the right to succeed so as to terminate the joint status for the purposes of that right. In Sri Raja Lakshmi Devi Garu v. Sri Raja Surya Narayan'tl Dlzatrazu Balzadur Garu('), the last zamindar died without any issue in 1888, and when his widow was in possession, the suit was brought for possession by a male collateral descended from a great grandfather common fo him and to the last zamindar. The plaintiff claimed to establish his right as a mem- ber of an undivided family holding joint property against the widow who alleged that her husband had been the sole proprietor. In proof of this she relied on certain arrangements as having constituted partition, viz.
that in 1816, two brothers, then heirs, agreed that the elder should hold possession, and that the younger should accept a village, appropriated to him for maintenance in satisfaction of his claim to inherit ; again, that in 1866, the fourth zamindar compromised a suit brought against him by his sister for her in- . heritance, on payment of a stipend to her, having already, in the claim of his brother, granted to him two villages of the estate ; and by the compromise, this was made conditional on the sister's claim being settled ; again, that in 1871, the fourth zamindar having died pending a suit brought against him to establish the fact of an adoption by him, an arrange- ment was made for the maintenance of his , .. S. C. R. SUPREME COURT REPORTS 267 1951 of this case ation than above. can be made to rest on a more solid found- furnished by the considerations set out The whole emphasis of Mr. Raghavan who Cllinnathayi alias Veeralak_shmi l'.
represented Kulasekara was on the words of the deed contained in clause 5 set out above. Sundara Pandiya by this clause stipulated that Kulast! lcara Pandiya Naidr,,er and Another. he will have no right to the property shown as belong- ing to the widow. Sundara Pandiya was then agreeing that the widow should retain the zamindari absolutely, his mind being affected by the will. Later on by the compromise made in Kandasmai 's suit what had been given absolutely to the widow was . converted into a life estate with the exception of the pannai lands and Kandasami was acklnowledged as the rightful heir.
The recitals in the release deed therefore have to be read in the light of the terms and conditions of the deed of compromise and the proper inference from these is that Sundara Pandiya relinquished his rights to succeed to the zamindari immediately as the senior- most member of the family but that he did not re- nounce his contingent right of succeeding to it by surviorship if and when the occasion arose. It is well settled that general words of a release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed : vide Directors etc. of L & S. W. Ry. Co. v. Richard 1 Doddridge Blackmore(1). In that case it was said that general words in a release are limited to those things which were specially in the contemplation of the parties when the release was executed. This rule is good law in India as in England.
The same rule has been stated in Norton on Deeds at page 206 (2nd Ed. ) thus:- "The general words of a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given, though they were not mentioned in the recitals. " ' (1) L. R. 4 H. L, 610. I M aliaian J. 1951 Chinnathayi alias Veeralakshmi v. Kulasekara f'andiya N aicker and Another. MahaiaTJ /. 268 SUPREME COURT REPORTS [19521 In Hailsham's Edition of Halsbury's Laws of England, Vol. 7, at para 345 the rule has been stated in these terms :- "General words of release will be construed witb reference to the surrounding circumstances and as being controlled by recitals and context so as to give effect to the object and purpose of the document. A release will not be construed as applying to facts of which the credito;- had no knowledge at the time when it was given. " In Chowdhry Chintaman Singh v. Mst.
Nowlukho Kunwari('), where the document was drafted in almost the same terms as Exhibit P-17, it was . said that though the words of the petition of compromise were capable of being read as if the executants were giving up all rights whatever in the taluka of Gungore, yet in the opinion of their Lordships the transaction amounted to no more tban an agreement to waive tbe claim to a share in and to the consequent right to a partition of the taluka and there was no intention to change the character of the estate or the mode in which it was to descend. The parties in the year 1890 were not thinking of their future rights of survivorship at all. What Sundara Pandiya must be taken to have said by this release was "I am giving up . my present rights as a senior member in favour of Kandasami whom I recognize as the rightful heir to the zamindari as a member of the joint Hindu family. " Kandasami agreed to give him the village of Dombacheri in lieu of recognition of his title by him.
It was not within the ken of tbe parties then as to what was to happen to the zamindari in case Kandasami's line died out. For the reasons given we are of the opm10n that by the release Sundara Pandiya did not renounce his rights or the rights of his branch to succeed to the zamindari by survivorship in case the line of Kanda- sami became extinct. We hold therefore tbat (I) (1874) 2I. A. 263. ·-' S. C. R. SUPREME COURT REPORTS 269 Kulasekara's claim was rightly negatived in the courts below arrd that of Rajaya was rightly decreed. In the result all these appeals fail and are dismissed with costs. Appeals dismissed. Agent for the appellant in Ci. vii Appeals Nos. 28 & 29 of 1949, respondent No. 1 in Civil Appeals Nos. 30, 32 & 33 of 1949 and respondent No. 2 in Civil Ap- peal No. 31 of 1949 and for Respondent No. 3 in Civil Appeal No. 31 of 1949 : M. S. K. Sastri. Agent for the appellant in Civil Appeals Nos. 31 to 33 of 1949, respondent No. 1 in Civil Appeals Nos.
28, 29 of 1949 and respondent No. 2 in Civil Appeal No. 30 of 1949 : M. S. K. Aiyangar. Agent for the appellant in Civil Appeals Nos. 30, 89, and 90 of 1949, respondent No. 1 in Civil Appeal No. 31 of 1949 and respondent No. 2 in Civil Appeals Nos. 28, 29, 32 & 33 of 1949: S. Subrahmanyam. Agent for the respondents Nos. 1 and 2 in Civil Ap- peals Nos. 89 and 90 of 1949: V. P. K. Natr! biyar. RAM KUMAR DAS ti, JAGADISH CHANDRA DEB DHABAL DEB AND ANOTHER. [PATANJALI SAsTRI C. J. , MuKHERJEA, DAs and VMAN BosE JJ. ] Transfer of Property Act (IV of 1882), ss. 106, 107-Duration of lease-Presumption-Kabuliyat for 10 years-Payment of annual rent for two years only-Kabuliyat inoperative-Nature of posses- sion after the two years-Whether adverse, as tenant from year to year, or as monthly tenant-Applicability of s. 106 to implied tcnan· cies-Prcsumption from payment of annual rent. The rule of construction embodied in s.
106 of the Transfer of Property Act applies not only to express leases of uncertain duration but also to leases implied by law which may be inferred from possession and acceptance of rent and other circumstances, 1951 Chinnathayi alias Veeralakshmi v. Kulasekara Pandiya Naicker and Another. 1951 Nov. 26
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