Decided on February 09,1944

Alla Venkatappadu and Ors. Appellant


Happell, J. - (1.) THE appellants are the third and the fourth defendants, and the wife of the first defendant in O.S. No. 57 of 1937 in the Court of the District Munsiff of Vizagapatam. The plaintiff in that suit was the widow of a certain Appadu who had died in July, 1934. The father of this Appadu had married the daughter of one Jaganna and jaganna had taken him into the family as his illatom son -in -law. The first defendant was the grandson of Jaganna. Disputes apparently arose between the first defendant and Appadu and in consequence they executed the settlement deed, Ex. C, dated 2nd May, 1932. The plaintiff filed O.S. No. 57 of 1937 on the footing of this settlement deed, and claimed possession of her husband's half share of the properties, on the ground that the defendants had trespassed on them in 1935, together with mesne profits from that year and, in case it was found that she was not entitled to possession, she claimed maintenance at the rate of Rs. 12 per mensem and arrears of maintenance amounting to Rs. 180.
(2.) THE District Munsiff considered that the plaintiff was entitled to possession and passed a decree accordingly. The learned Subordinate Judge took the same view as to the construction of Ex. C as the District Munsiff but during the pendency of the appeal the first defendant had died. The material portion of Ex. C runs as follows : It is arranged that from this day the properties mentioned in paragraph 3 herein should be enjoyed during our lifetime each having a right to half share therein without having any right of sale, gift, mortgage, etc.; and the property should be kept and enjoyed jointly and if at our death either of us leave no male issue his half share should be enjoyed by the heirs of the other person along with their own half share. The plaintiff's husband left no male issue and the question at issue regarding the construction of the document was whether Appadu's share passed to the male issue of the first defendant on Appadu's death or whether it passed only after the death of the first defendant. In my opinion the construction put on the document by the lower Courts was correct as it is "our lifetime" and "at our death" that are spoken of. Even then, however, on the death of the first defendant during the pendency of the appeal Appadu's share of the property passed to the other defendants so that the decree for possession could not have been enforced. The learned Subordinate Judge referred to this and considered that the case before him was one in which the altered circumstance should be taken into account by him. He consequently varied the decree of the District Munsiff and gave the plaintiff a decree for mesne profits from 1935 which were to be ascertained on the presentation of a petition in that behalf to the Court and for maintenance at the rate of Rs. 85 per annum.
(3.) THE third and fourth defendants and the wife of the first defendant appeal against the Subordinate Judge's decision with regard to both mesne profits and maintenance. As far as mesne profits are concerned, as I agree with the learned Subordinate Judge on the construction of the document, I agree with him also that the plaintiff was entitled to mesne profits. The question of the maintenance granted raises a more difficult point. It is argued for the defendants that there is no basis for the claim to maintenance, since the plaintiff's husband and the first defendant were not coparceners. This contention in view of the decisions of this Court must be accepted. In Mulla Reddi v. : (1893)3MLJ239 , one of the daughters of a son of a person taken as an illatom son -in -law by A sued the natural son of A (the second defendant) to recover one -fourth share of the property left by A. It was held that she was entitled to recover in the absence of proof of a custom by which the rights of the plaintiff's father should have passed by survivorship to the second defendant. In Chenchamma v. Subbayya, I.L.R. (1885) Mad. 114, it was held that, although an illatom son -in -law and a son adopted into the same family might live in commensality neither they nor their descendants can, in the absence of proof of custom, be treated as Hindu coparceners having the right of survivorship. In Sivada Balarami Reddi v. Sivada Pera Reddi, I.L.R. (1885) Mad. 114, the same principles were applied and it was held that an illatom son -in -law does not lose by the mere fact of his affiliation into another family, the estate of his natural father's divided brother. In a more recent case Muthiala Reddiar v. Sankarappa Reddiar, (1934) 67 M.L.J. 706, Varadachariar, J., applying the principles laid down in the earlier cases, held that apart from proof of custom, the descendants of an illatom son -in -law could not claim rights of collateral inheritance in preference to reversioners of the last male holders of an estate. An illatom son -in -law, therefore, is entitled to the same share as a son or an adopted son, but he does not take by survivorship. The consequences which flow from this will often be favourable to an illatom son -in -law and his heirs. The widow, for instance in the present case on the death of her husband, in the absence of the deed, Ex. C, could not have been entitled to maintenance as he was not a coparcenar; but she would have been entitled to claim the whole of the share which he got from the father. In the present case, however, the position is this. The plaintiff's husband entered into an arrangement for consideration by which on his death the properties which he got or to which he was entitled to as illatom son -in -law passed to the defendants. The plaintiff for the reasons already given has no claim to maintenance as against the defendants and, unfortunately, by reason of the terms of the settlement deed on the death of the first defendant has no claim on the property. I am therefore reluctantly compelled to agree with the arguments put forward for the defendants -appellants5 and the decree so far as it grants maintenance to the plaintiff must be reversed. To that extent this appeal is allowed. Parties will bear their own costs throughout.;

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