(1.)THESE eight appeals arise out of a common judgment of the High court of Madras dated the 30/10/1945, given in seven appeals preferred 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.
(2.)THE zamindari of Bodinaickanur is an ancient impartible estate in the district of Madura, owned by a Hindu joint family. THE genealogical tree of the family is as follows :--
The zamindari was last held by Kamaraja II of the second branch. He died on 16/02/1941, without male issue, but leaving him surviving a widow Chinnathayi alias 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 eider son by 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 to devolution of separate property. Kulasekara of the fourth branch claimed it on the basis that Sundata 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 28/04/1941, 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 Kamaraja II. As regards one of the villages comprised in the zamindari, viz., Boothipuram, the title of the widow was recognized. In pursuance of this 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.
On the 22/06/1941, the widow (Chinnathayi) brought suit No. 5 of 1941 for possession of the zamindari against Kulasekara 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 4/07/1941, 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 9/06/1934, in respect of the pannai lands that were in the possession of Kulasekara of the fourth branch under the order of the revenue officer.
(3.)THE third suit, O.S. No. 6 of 1941, was brought by Rajaya of the third branch on 27/08/1941, 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 promogeniture he was the person next entitled to succeed to the zamindari after the death of Kamaraja II.
The last suit, O.S. No. 7 of 1941, was instituted by Kulasekara of the fourth branch on 13/10/1941, against the widow and Rajaya, his rival claimants to the zamindari for a declaration that he was the rightful heir and successor to the zamindari and was entitled to possession of Boothipuram village registered in the name of the widow.
The zamindari of Bodinaickanur orginally consisted of fifteen villages mentioned in schedule (A) to the plaint in O.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 Chokkalingaswami Naicker, representing the first, second, third, fourth and fifth branches respectively. Rajaya Naicker was succeeded by his eldest 'son Bangaru Thirumalai Bodi Naicker who died on the 27th October, 1862, and was succeeded by his son. T.B. Kamaraja Pandiya Naicker (Kamaraja I) who remained as zamindar till his death on 15th December. 1888. He had no son and on his death his widow Kamuluammal got into possession of the estate. Proceedings for transfer were taken in the revenue court for registry of the zamindari and statements of the male members of the family belonging to the second, third, fourth and fifth branches and of the widow were recorded 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 zamindari 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 four persons are his heirs to succeed and yet we agree to his widow Kamuluammal taking and enjoying the above said zamin and all other properties save the under mentioned lands set apart for our maintenance. Remission of the tirwah of the said lands allowed to us and of the tirwah of the lands registered in our names and enjoyed till now, should be granted to us.` 544 kulies of pannai lands under the Bangaruswami tank and the 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 statements 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 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.