Decided on December 15,1927

KONAMMAL Appellant


John Wallis, J. - (1.) THIS litigation is concerned with the right of succession to the Jadaya Gounder Jaghir or Chinna Tiruppadi Hill Polliem, as it was formerly known, in the South Arcot District of the Madras Presidency. These ancient polliems in Southern India have always been held to be impartible, and this estate has now been included in the schedule of impartible estates to the Madras Impartible Estates Act II of 1904.
(2.) IT is therefore according to the definition in Section 2 of the Act "an estate descendible to a single heir and subject to the other incidents of impartible estates in Southern India," and the proprietor of the estate ia "the person entitled to the possession thereof as single heir under the special custom of the family or locality in which the estate is situated, or if there be no such family or local custom under the general custom regulating the succession to impartible estates in Southern India." This statutory definition would appear to be in entire accordance with what has often been laid down by this Board, that these impartible estates are the creatures of custom, and with the decision in Katama Natchiar v. The Rajah of Shivagunga (the Shivagwnga case (1863) 9 M.I.A. 539) that where no special custom is proved, the customary law of succession is to be found in the Mitakshara, which is the general customary law in this part of India, "with Much qualifications only as flow from the impartible nature of the subject," and that consequently, in applying this law the impartible estate, though in the sole enjoyment of the holder, is to be regarded for the purposes of succession as the joint property of the holder and his family and as passing by survivorship, unless it is shown to be the separate property of the holder or his branch, in which case it is descendible according to the roles of the Mitakshara as to separate property. In this case the first plaintiff, who is the mother of the last holder, claims the estate as the nearest heir to his separate property, whereas the defendant, who is a distant male agnate, claims to succeed to it as joint family property.
(3.) THE plaint included an alternative claim by the second plaintiff', who is the son of the first plaintiff's sister under a will made by the last holder. This claim has been rejected rightly in both the lower Courts as Section 4 of the Impartible Estates Act restrains the proprietor from making any alienations to ensure beyond his own lifetime except for necessary purposes, except in so far as Sub-section (3) preserves his right to provide for the succession to the estate in default of heirs. As regards the first plaintiff's claim, the District Court held that the estate was the separate property of the last holder and decreed her suit, but this decree was reversed by the High Court of Madras, who held that the first defendant was entitled to succeed, as the estate had not ceased to be the joint property of the family of the last holder and the first defendant.;

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