Ramalakshmi Ammal, - Appellant; Sivanantha Perumal Sethurayar, - Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 15 March 1872 |
| Date | 15 March 1872 |
| Court | Privy Council |
English Reports Citation: 20 E.R. 898
ON APPEAL FROM THE HIGH COURT OF JUDICATURE AT MADRAS.
See Sheo Singh Rai v. Mussumut Dakho, 1878, L.R. 5 Ind. App. 108; Pedda Ramappa Nayanivaru v. Bangari Seshamma Nayanivaru, 1880, L.R. 8 Ind. App. 1; Sundaralingasawmi Kamaya Naik v. Ramasawmi Kamaya Naik, 1899, L.R. 26 Ind. App. 57; Jagdish Bahadur v. Sheo Partab Singh, 1901, L.R. 28 Ind. App. 107.
[570]' RAMALAKSHMI AMMAL,-Appellant; srVANANTHA PERUMAL SET-HURAYAR,-Respondent * [March 14 and 15, 1872]. On appeal from the High Court of Judicature at Madras. A., who had a first or royal Wife living, who died without issue, intermarried on the same day with B. and C. Both Wives had male issue, C.'s Son being born first. Held, that C.'s Son was entitled to succeed to an impartible zemin- * Present: Members of the Judicial Committee,-The Right Hon. Sir James William Colvile, the Right Hon. Sir Montague Edward Smith, and the Right Hon: Sir Robert Porrett Collier. 898 V. SIVANANTHA PERUMAL SETHURAYAR [1872] XIV MOORE IND. APP., 571 dary in preference to B.'s Son, as by Hindoo Law priority of birth was not affected by the prior marriage with B., the then senior Wife. If a party rely upon a special custom of a family to take the succession to the zemindary out of the ordinary Hindoo Law, such custom must be proyed to be ancient and continuous [14 Moo. Ind. App. 585, 586]. - A letter of the Collector containing a summary of the statements by Zemindars for information of the Board of Revenue in a, dispute, as to the right of inheritance to a zemindary in the same District, is not admissible as evidence [14 Moo. Ind. App. 588]. The object of this suit was to establish the title of the Respondent to succeed to an impartible zemindary, called Urkadu, as the heir of the Appellant's late Husband, Zemindar Kottalinga Sethurayar. The Respondent claimed to be heir, as the Son eldest in age of the Zemindar's Sons, and also as being the Son of the second Wife. The Appellant insisted, that she was the second Wife, and that the Respondent's Mother was the third Wife of the Zemindar, and that her Son, as being the Son of the senior sur-[571]-viving Wife, though born after the Son of the third Wife, was entitled to succeed to the zemindary, in preference to the Respondent. Kottalinga Sethurayar was a Zemindar Polygar in the Zillah of Tinnevelly, Madras. He belonged to the caste called Maravars among whom polygamy prevails. Both sides admitted first, that the Sons of the first or royal Wife succeeded to the zemindary in priority to Sons, of any other Wife, and without reference to the age of her Sons, and secondly, the fact, that the first Wife had died without issue. The facts were these :- Kottalinga Sethurayar married three Wives. Kanthimathiammal, the first or royal Wife, died in his lifetime, without issue. The Appellant and the Respondent's Mother were the other two Wives, and were married to him on the same day, and the first question in the appeal was one of fact, whether the Appellant or the Respondent's Mother was the first married to the late Zemindar. Both Wives were of the same class. The Respondent was born in the year 1838; the Appellant's eldest Son, Murthu Ramalinga Sethurayar, was not born till 1849. The second question in the appeal was, whether, assuming the Appellant to have been the Zemindar's senior surviving Wife, her Son, though younger in age, was or not entitled to succeed to the zemindary in preference to the Respondent as the Son of the junior Wife. It appeared from the documents put in evidence, that previously to the suit in which the above questions arose, regarding the succession to the zemindaries [572] of the Maravars in the District of Tinnevelly, a similar dispute had arisen respecting the zemindary of Purayar, in the same District of Tinnevelly. In that case, the deceased Zemindar left two Sons, one aged two years, by his second Wife, and the other aged eight years, by his third Wife, and the law Officers of the then Sudder Dewanny Court gave their opinion, that by the Hindoo law, the elder in age of the two Sons would be his Father's heir; but the Government entertaining an opinion that this was not the rule of succession in the District, directed the opinions of the Zemindars in the District to be taken as to the rule of succession among the Polygars there. The opinions of twenty Zemindars in the District were accordingly taken, and that of the great majority was, that the Son of the senior Wife for the time being, though younger in age, was to be preferred to the elder Son of a junior Wife. The Government acted on this opinion, and the Son of the senior Wife succeeded to the zemindary. It further appeared, that some time in the year 1849, the late Zemindar Kottalinga Sethurayar was requested by the Collector of Tinnevelly to state for his information the rule of succession which prevailed in his zemindary of Urkadu;-and on the 17th of July, 1849, and before the birth of the Appellant's Son, that he had addressed an Arzi to the Collector, in which he stated, that when a Zemindar of his caste had Sons by different Wives, the Son of the first Wife always succeeded to the zemindary, and that in the event of there being no Son by the first Wife, the first-born Son amongst the Sons of the other Wives had a right to succeed to the zemindary, and that in [573] such case the succession did not depend upon the order in which the Wives 899 XIV MOORE IND. APP., 574 RAMALAKSHMI AMMAL were married. This Arzi was said to have been stolen from the Record Office and another substituted, and was not in evidence. The Respondent in the Courts below relied on two Arzis addressed to the Collector of Tinnevelly by the Zemindar, dated respectively the 18th of August, 1853, and 28th of November, 1853, as showing the Zemindar at that date recognized the Respondent as the heir to the zemindary. In the year 1861, the Appellant instituted a suit, No. 3, of 1861, on behalf of herself and her eldest Son, Murthu Ramalinga Sethurayar, in the Civil Court of Tinnevelly, against the late Zemindar Kottalinga Sethurayar, the Respondent and another, in order to obtain a declaratory Decree of the Court establishing the right of the Appellant's Son to succeed on the death of his Father, the first Defendant, to the zemindary. The suit was* heard before the Judge of the Civil Court of Tinnevelly, who by his judgment, dated the 21st of February, 1862, decreed that the Son of the Appellant, was the lawful heir of the Zemindar, and was entitled on his decease to the zemindary. The Zemindar Kottaliuga Sethurayar died on the 25th of August, 1862, pending an appeal from this decree, which was reversed. The Respondent filed his plaint in 1863, in the Civil Court of Tinnevelly, against the Appellant, the three minor Sons of the Appellant, and others, claiming the zemindary as the eldest Son and heir of the late Zemindar, and also claiming other real and personal estates of the late Zemindar, which are not material to the question in this appeal. [574] By the statement, or answer of the Appellant, in her own right and as. Guardian of her eldest Son, she insisted, that the Respondent was the Son of the late Zemindar's third "Wife; that it was arranged that the Appellant should be married as second Wife, the first Wife being then living, in order that her Son might get the Puttam (right of succession), and that first Defendant as eldest Son of the Appellant, as second Wife standing next in rank to the first Wife, was the sole heir to the zemindary of Urkadu, according to the invariable and long standing usage of the zemindary. The answer then referred to the Decree in the suit, No. 3, of 1861, and alleged, that all zemindaries in the District had the same usage, and that there was the same family usage in the zemindary in question, and submitted, that the eldest Son treated of in Hindoo law was the eldest Son of the senior Wife, and that it did not, therefore, apply to the Respondent. Among the evidence was a Letter of the Collector of the District to the Revenue Board, containing the substance of the declarations of the Zemindars of the District before mentioned in respect to succession of the Maravars in the District of Tinnevelly. Evidence as to the priority of the respective marriages was gone into, and on the balance of the evidence on both sides, and the probabilities of the case, it established, that the Appellant was married to the Zemindar before the Respondent's Mother, though on the same day. The suit came on to be heard before Mr. W. Hodgson, the acting Judge of the Civil Court of Tinnevelly, on the 29th of August, 1864, who gave the following judgment:-The Court being of opinion, [575] that the first Defendant (the Appellant's Son) has established his right and title to succession to the zemindary of Urkadu, as the eldest Son of the Appellant, the second and senior Wife of his Father, the late Zemindar, dismisses the Plaintiff's (Respondent's) claim, so far as it relates...
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