Dowager Rani Lalitha Kumari Devi and Others Vs The Raja of Vizianagaram and Others

Madras High Court 25 Apr 1952 O.S. Appeal No''s. 106 to 109 of 1950 (1952) 04 MAD CK 0019
Bench: Division Bench
Acts Referenced

Judgement Snapshot

Case Number

O.S. Appeal No''s. 106 to 109 of 1950

Hon'ble Bench

Rajamannar, C.J; Venkatarama Ayyar, J

Advocates

M.C. Setalvad, Attorney General for D. Narasaraju, K.B. Krishnamurti and A.N. Rangaswami, in Nos. 106 and 107 of 1950 and M.C. Setalvad, Attorney General for C.A. Vaidyalingam, Alladi Kuppuswami and P. Venkataswami, in Nos. 108 and 109 of 1950, for the Appellant; A.G., N. Rajagopala Iyengar, P. Rama Reddi, R. Ganapathi Aiyar, C.R. Pattabhiraman, S. Ramayya Nayak, M. Seshachalapathi, C.A. Vaidyalingam and P. Venkataswami, in Nos. 106 and 107 of 1950 and A.G., N. Rajagopala Iyengar, P. Rama Reddi, S. Ramayya Nayak, D. Narasaraju, K.B. Krishnamurthi and M. Seshachalapathi, in Nos. 108 and 109 of 1950, for the Respondent

Acts Referred
  • Evidence Act, 1872 - Section 115
  • Madras Impartible Estates Act, 1902 - Section 14, 2(3), 3, 7
  • Succession Act, 1925 - Section 82, 97

Judgement Text

Translate:

Rajamannar, C.J.@mdashThese are appeals from the judgment of Rajagopalan J., dated 11-9-1950 in two suits C. S. Nos. 494 and 495 of 1949 on the file of the Original Side of this Court. The Rajah of Vizianagaram is the plaintiff in

both the suits. The four defendants in each suit are the same, though there is a slight difference in their rank. They are :

1. Maharaj Kumar Dr. Sir Vijaya Anand Gajapathi Raj, the paternal uncle of the plaintiff, hereinafter referred to in this judgment as Vijaya,

2. Sri Rani Lalitha Kumari Devi, Dowager Maharani of Vizianagaram, his grandmother, hereinafter referred to as the Dowager Maharani,

3. Sri Rani Vidyavathi Devi, Rani Saheba of Vizianagaram, his mother, and

4. Raj Kumar Sri Visweswar Gajapathi Raj, his brother.

2. It is common ground that originally the Vizianagaram Zamindari (which included the estate of Kasipuram), was an impartible estate. A sanad was granted under the Permanent Settlement Regulation to Narayana Gajapathi Raj in 1803.

The following is the genealogy of the Vizianagaram family in so far as it is material for these appeals:

NARAYANA GAJAPATHI RAJ d. 1845

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Sir Vijayarama Gajapathi Raj I d. 1879

= Alak Rajeswari d. 1901.

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Sir Ananda Gajapathi Appalkondayamaba I, Maharani of Chittibabu Viziaram Raj

Raj (d. 23.5.1897) Rewa (d. 14.12.1912). d. 11.9.1922) (adopted by

Alak Raje-wari I,

18.12.1897=Lalithakumari

Devi

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_____________________________________________________________________

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Alak Narayana Gajapathi Raj Sir Vijayananda Gajapathi Raj, Alak Rajeswari II.

Raj (b. 1902, d. 25.10.37) (b. 25.12.05).

= Vidyavathi Devi

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__________________________________________________________________________________________

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Appalakondayamba II. Viziaram Gajapathi Raj II. Jaya Devi Visweswara

(b. 1.5.24) Plff. in both the suits Gajapathi Raj.

3. Narayan Gajapathi Raj died in 1845 and was succeeded by his son Sir Viziarama Gajapathi Raj who died in 1879 leaving him surviving his only son Sir Ananda Gajapathi Raj, his daughter who became the Maharani of Rewa and his

widow Alak Rajeswari. Anand Gajapathi succeeded to the raj. He died on 23-5-1897 issueless. He left behind him his last will and testament dated 22-7-1896 (Ex. P. 6) under which, after providing for certain legacies and allowances,

he bequeathed the impartible estate as well as all his moveable and Immovable properties to Chittibabu Viziaram Raj who was the son of his mother''s brother. The nature and, amplitude of the estate conferred on Chittibabu by this will is

in controversy and will be dealt with later in this judgment. The testator obviously expected Chittibabu to be adopted by his mother Alak Rajeswari to her husband Sir Viziarama. Chittibabu was actually adopted by Alak Rajeswari to her

husband on 18-12-1897, & on the next day, 19-12-1897 a deed of adoption was executed between her and the mother of Chittibabu (Ex. P. 7). Chittibabu was duly registered as the holder of the impartible estate on 1-11-1898. The

extract from the Register of Transfers shows that his title was traced both to the will of Ananda Gajapathi as well as to his adoption to Sir Viziarama Gajapathi. Alak Rajeswari died in 1801 leaving a will dated 5-1-1898 bequeathing all

her Immovable properties to her daughter, the Maharani of Rewa, for her life & thereafter to her adopted son Chittibabu.

On 28-10-1912 Chittibabu executed a deed of trust (Ex. P. 11) conveying the impartible estate and various other properties belonging to him to a trustee for the benefit of his minor son Alak Narayan subject to the payment of

maintenance and other allowances to himself and other members of his family and after providing for the payment of his creditors. This is one of the important documents in the case and its provisions will be discussed in due course with

reference to the contentions put forward by both sides regarding the construction of some of its clauses. It is sufficient to say at this stage that it was inter alia provided under this deed that Vijaya should be paid a sum of Rs. 5000 per

month during his life on his attaining majority. On 14-12-1912, the Maharani of Rewa died leaving behind her a will dated 14-12-1911. In and by this will she bequeathed all her moveable and Immovable properties subject to certain

legacies and directions to Chittibabu for his life and thereafter to Alak Narayan and Vijaya, to the former two-thirds and to the latter one-third thereof. One of the largest assets covered by the will is a sum of Rs. 17 lakhs which the

Vizianagaram Samasthanam owed to her. On 18-5-1914 the trustee constituted under the deed of trust which had been executed by Chittibabu, purporting to act under the power conferred on him by para 33 of that deed, executed a

deed described as an auxiliary trust deed in favour of Lalitha Kumari, the wife of Chittibabu, providing for the payment from the trust funds during the rest of her life of a sum of Rs. 3,000 a month till the debts mentioned in the trust deed

were discharged and thereafter for the payment of a sum of Rs. 6,000 a month.

Chittibabu died on 11-9-1922. He left a will dated 25-10-1921 under which he bequeathed all his moveable and Immovable properties which had not been conveyed under the trust deed of 1912 to his second son, Vijaya, subject to

certain legacies and allowances. On Chittibabu''s death Alak Narayan succeeded to the impartible estate as well as to the other properties covered by the trust deed. On 1-11-1922 Alak Narayan executed a deed of settlement in favour

of Vijaya who was then a minor and was represented by his mother, the Dowager Maharani, conveying to Vijaya the properties known as ""Benares Estate"" and his two-third share in certain houses at Ootacamund and Benares in

consideration of Vijaya releasing his right to recover his share of the amount of Rs. 32,85,000 to which he was entitled under the will of the late Maharani of Rewa. This deed was confirmed by Vijaya after he became a major by the deed

dated 12-6-1924 (Ex.P.30). On 11-2-1928 Alak Narayan executed another deed of settlement (Ex. P. 31) settling on Vijaya for his life an allowance of Rs. 5,000 a month besides the allowance payable to him under the terms of the

registered trust deed dated 28-10-1912. The Vizianagaram estate and other properties belonging to Alak Narayan were taken under the superintendence of the Court of Wards in the year 1935. In or about December, 1935 Vijaya

submitted to the Court of Wards a statement of his claims against the impartible estate and the other properties of Alak Narayan then under the management and superintendence of the Court of Wards. The most important of the several

claims put forward by him was the claim to a half share in all the properties of Chittibabu except of course the impartial estate. The Court of Wards referred these claims to Sir D'' Arcy Reilly who, after an elaborate enquiry sent a report

on 23-11-1944. Alak Narayan meanwhile died on 25-10-1937 and the plaintiff succeeded to the Raj. On 9-10-1944 Vijaya on his own behalf and as guardian of his minor sons executed a deed of release (Ex. P.36) in favour of the

Rajah and his brother Rajkumar Visweswara, then minors represented by their guardian, the manager of the Vizianagaram Estate under the Court of Wards. The effect of this release is also one of the major points in dispute in these

appeals. In and by this deed Vijaya in consideration of the payment of a sum of Rs. 10 Lakhs and a further sum of Rs. 54,193 by the Court of Wards relinquished & surrendered all his claims as well as the claims of his minor sons,

among others, to any share in the moveable and Immovable properties of Chittibabu including properties which were alleged by him to be joint family properties to which Chittibabu and his two sons Alak Narayan and Vijaya were also

entitled. This release however was without prejudice to Vijaya''s right of succession to the impartible zamindari and also without prejudice to the right to maintenance out of the income of the said Zamindari and to any claims which Vijaya

might have against the separate property of his late brother Alak Narayan.

As the allowances payable to him were not being paid regularly, Vijaya was compelled to fits suits O.S. Nos. 133 of 1946 & 156 of 1947, in the Court of the Civil Judge, Benares, against the Rajah for the recovery of the arrears which

had become payable. The two suits were decreed and there were appeals to the High Court of Allahabad which substantially confirmed the decrees of the trial Court. There was a further appeal to the Supreme Court which confirmed the

decrees so far as the amounts of the claim were concerned but modified the decrees"" as regards the properties from and out of which Vijaya was entitled to obtain satisfaction of his claims. The disposal of the appeals by the Supreme

Court was however after Rajagopalan, J., had delivered his judgment.

4. The Estate was released from the superintendence of the Court of Wards and handed over to the plaintiff in July 1946. In August 1949 notifications were published under the provisions of the Madras Estates Abolition and Conversion

into Ryotwari Act. 1948, and the Estate was taken over by the Government with effect from, 7-9-1949.

5. In C. S. No. 494 of 1949 the plaintiff, the Rajah, prays for a decree fixing the proper maintenance payable to each of the defendants haying regard to the provisions of the Madras Impartible Estates Act and declaring that on and after

the notified date under the Madras Estates Abolition and Conversion into Ryotwari Act, 1948, the defendants cannot claim any amounts for maintenance except to the extent and in accordance -with the provisions of the Act. Though the

prayer is general and in respect of each of the defendants, the real contest is between the Rajah on the one hand and Vijaya and Dowager Maharani on the other. The mother and the brother of the plaintiff support him in this matter. The

other suit, C. S. No. 495 of 1949, is a suit for partition of the partible properties belonging to the joint family, and we are concerned in these appeals with that suit only is so far as the questions directly arising in C. S. No. 494 of 1949

incidentally arise therein. The main case of the Rajah is that the amounts of Rs. 5000 each payable under the trust deed of 4912 and the settlement deed of 1928 respectively to Vijaya and the sum of Rs. 6000 payable to the Dowager

Maharani are in fact and in law amounts payable to them as and for their maintenance in discharge if the obligation laid on the holder of an impartible estate both by the general law and by Madras Act 2 of 1904. These amounts are

therefore liable to be reduced having reference to the change of circumstances relating to the source of income of the estate & the circumstances of the family. Section 14 of Madras Act, 2 of 1904 specially provides for such a revision.

The case of Vijaya and the Dowager Maharani is that these amounts are not payable to them in discharge of any such obligation, but that they were fixed amounts payable to them Under the respective deeds and these amounts are a

charge on the impartible estate as well as the other properties of the Rajah. This is the main subject-matter in controversy. Every one of the contentions raised either on behalf of the Rajah or on behalf of Vijaya and the Dowager

Maharani is directly or indirectly connected with this main issue, and has to be dealt with from that aspect. Rajagopalan, J. held in favour of the Rajah on this issue, that the amounts provided for by Exs. P-11, P-31 and P-13 were

maintenance allowances and were liable to be decreased if the circumstances that are proved to have existed on the date of reduction justified such an action. This finding was attacked by Mr. Setalvad, learned Attorney General, who

appeared on behalf of Vijaya and the Dowager Maharani.

6. The first point which calls for discussion relates to the construction of the will of Ananda Gajapathi. The contention of the plaintiff is that the will purported to confer on Chitibabu an estate in tail male and such an estate was unknown to

Hindu law and the bequest must therefore be deemed to be only of a life estate to Chittibabu. Undoubtedly, if what was conferred on Chittibabu by the will was in the nature of an estate tail male, then the disposition as such would be

bad. As their Lordships of the Privy Council observed in -- ''Kristomai Dasi v. Narendra Krishna'', 16 Cal 383 (PC) (A) after referring to the ''Tagore case''.

The rule is that if a ""Hindu donor wishes to confer an estate of inheritance it must be such a one as is known to the Hindu law which an English estate tail is not.

7. The question, therefore, is whether the will confers such an estate.

8. The following are the material portions of the will:

Know ye all men present that I Anandagajapathiraj Maharajah of Vizianagaram son of His Highness Sri Vijiaramajapathiraj Maharaja Manya Sultan Bahadur of Vizianagaram K. C. S. I., declare this to be my last will and testament and

I hereby make the same in full possession of all my faculties and understanding & with a view to perpetuate succession of my family.

Whereas I, the above said Anandagajapathiraj Maharajah of Vizianagaram have at present no issue either male or female I do hereby appoint Chittibabu Vijiaramaraj and his male issue to be my legal heir, successor and representative

and I do hereby bequeath to the said Chittibabu Viziaramaraj all the property moveable and Immovable of the Samasthanam as well as my personal property together with all rights, titles, privileges, honours and insignia of the family

which I now possess or may hereafter acquire.

X X X X

(4) If I should beget a son or a daughter he or she shall be my legal heir and shall be entitled to all the property above described and this will shall be null and void provided he or she survives me.

(5) In the event of the abovesaid Chittibabu Vijayaramaraj predecease me or me surviving dies without being adopted or without issue male or female Her Highness my mother or my sister whichever of the two may then be living shall

have full power to appoint my successor and if both be living Her Highness my mother alone shall execute the right and after the demise of both without a successor being appointed by either of them the ruling power shall select a proper

boy to be my heir and successor with the permission of my nyaties.

(6) I do hereby require, direct and authorise the abovesaid Chittibabu Vijayaramaraj and his male issue or any successor that may be appointed in the several ways provided above, he, his heirs, and representatives shall assume my family

name of ""Pushpavati"" and style himself Mearja Rajah Rajah Viziaramaraj Manya Sultan Bahadur of Vizianagaram and shall be entitled to all the rights, titles, privileges, honours and insignia of the family as set forth in para 7 whoever may

be in possession of the estate under he several abovesaid contingencies he or she shall make proper and liberal allowance to all the other members of the family regard being had to their status the pocket money not less than six thousand

rupees a month in the case of her Highness my mother and three thousand rupees in the case of my sister and after the demise of Her Highness my mother six thousand rupees to my sister.

The learned Attorney-General contended that the bequest in terms is only to Chittibabu and not to Chittibabu and his male issue while learned Counsel for the Rajah urged that the dispositive clause begins with the words:

I hereby appoint Chittibabu Vijiaramaraj and his male issue,

and the clause should not be split into two. Personally I think the best and the most satisfactory way of construing the will is in read toe entire will without disregarding any of the clauses and so construe the will as to fit into a workable

scheme the provisions in the several clauses. By following this course I have arrived at the conclusion that the testator did not intend, nor did he in fact purport to confer an estate in tail male on Chittibabu. I gather the testator''s intention

from a reading of the first dispositive clause along with other clauses. It is clear to my mind that the testator did not intend that females should be absolutely excluded from the inheritance. In Clause 4 the testator expressly states that if he

begets a daughter she shall be his legal heir and be entitled to all his property. In the defeasance. provision in Clause 5, the contingency of Chittibabu dying without issue male or female is contemplated as being of significance. It means

that even if Chittibabu dies leaving female issue the defeasance will not operate. In Clause 7 the testator expressly mentions that whoever is his successor, he or she shall make proper and liberal allowances to alt members of his family. All

these provisions make it clear that it was far from the intention of the testator to exclude female heirs, in which case we will not be justified in construing the will as conferring an estate tail male on Chittibabu.

One of the rules of construction of wills is embodied in Section 97, Succession Act which runs thus:

Where property is bequeathed to a person and words are added which describe a class of persons but do not denote them as direct objects of a distinct and independent gift, such person is entitled to the whole interest of the testator

therein unless a contrary intention appears by the will.

The following are among the illustrations to the section:

A bequest is made to A and the heirs of his body; to A and the heirs male of his body; to A and the heirs female of his body; to A and his issue.

In each of these cases A takes the whole interest which the testator had in the property. No doubt this section does not apply directly to Hindu Wills. But it lays down a general principle of interpretation which could equally be applied to

a will by a Hindu. This and the other general principles laid down in the Succession Act are not based on any conceptions alien to Hindu law. They are all of them based on common sense, logic and a spirit of beneficent construction (vide

also -- Damodara Moothan Vs. Ammu Amma and Others, . The learned trial Judge relied upon the ruling of the Privy Council in '' 16 Cal 383 (PC) (A)''). I do not think that the construction placed upon the language of a particular will

taken as a whole materially helps to construe another will in which the language is different. In the case before the Privy Council there were no words of bequest except to certain persons in equal moieties and to the heir or heirs male of

their or either of their bodies. In the case before us we do not have the words ""heirs male of the body"". Because those words were used their Lordships of the Judicial Committee thought that apparently the draftsman had a smattering

knowledge of English Real Property law and knew there was a different between a son and a heir male of the body and had English dispositions of property in his eye.

In view of these circumstances and the absence of any words of bequest except to the brothers and the heirs male of their bodies they came to the conclusion that the will conferred an estate tail male. Before us Mr. Rajagopala Ayyangar

relied also on the decision of this Court in -- The Madura Hindu Permanent Fund, Limited, though its Secretary Vs. Kamakshi Ammal and Another, . Here again it must be observed that there were no clauses in the will which were only

consistent with the hypothesis that female heirs were not totally excluded. Reading the entire will I am of opinion that the will conferred an absolute estate on Chittibabu subject to the defeasance provided in Clause 5, namely, in the event

of Chittibabu not being adopted and also in the event of Chittibabu dying without male or female issue. Neither contingency occurred and we are not therefore concerned with the validity of this defeasance clause.

9. Mr. Rajagopala Ayyangar raised an additional contention, namely that the bequest to Chittibabu was conditional on his being adopted and unless and until he was adopted he got only a life estate. I cannot agree. There is no mention

anywhere in the will that Chittibabu was going to be adopted and that he was making the bequest only on condition that he was adopted. This argument which has more ingenuity than substance is not supported by the language of the will.

On the contrary, even if Chittibabu were to the after being adopted without issue, the defeasance provision operates and any other heir of Chittibabu would not be entitled to the property as per Clause 5 and the testator''s mother or sister

will have the power to appoint a successor. Clearly the bequest to Chittibabu was as a ''persona designata'', though it may be that the testator considered it most probable that he would be adopted to his father by his mother. Disagreeing

on this point with the learned trial Judge I hold that the will conferred an absolute estate on Chittibabu both in respect of the impartible Raj as well as the other properties of the testator.

10. Much time need not be spent in disposing of the contention of Mr. Rajagopala Ayyangar that on the adoption of Chittibabu by Alak Rajeswari the will of Ananda Gajapathi became invalid by the application of the doctrine of relation

back and therefore the only title which Chittibabu had was his title by virtue of the adoption. He was unable to cite any ruling in support of this novel contention which is opposed to the principles laid down both by this Court & by the

Judicial Committee of the P. C. So far as I understand it, the argument is that as an adoption dates back to the death of the person to whom he is adopted, Chittibabu''s adoption would date back to the death of Viziarama Gajapathi and

therefore Ananda Gajapathi was not the sole surviving coparcener when he executed the will in 1897. It is sufficient to quote the following observations of Viscount Dunedin in -- AIR 1927 139 (Privy Council) to reject this contention of

Mr. Rajagopala Ayyangar.

When a disposition is made ''inter vivos'' by one who has full power over property under which a portion of that property is carried away, it is clear that no rights of a son who is subsequently adopted can affect that portion which is

disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has"" been given power to adopt. For the will speaks as at the death of the testator, and the property is carried away

before the adoption takes place.

As their Lordships of the Privy Council put it tersely in the ''First Pithapur case''. ''22 Mad 383 (PC) (D1).

If the Rajah had power to alienate he might do it by will and the title by the will would have priority to the title by succession.

11. Mr. Rajagopala Ayyangar relied upon two decisions of this Court in support of his contention. In the first of these two cases, --'' Sukhdevdoss Ramprasad Vs. Mt. Choti Bai and Others, there was difference of opinion between

Phillips O. C. J. and Reilly J. There a sole surviving coparcener bequeathed by will his property to his widow absolutely and also gave her authority to adopt. She made an adoption in pursuance of this authority. The question was

whether she was divested of the absolute estate which she obtained under the will. Phillips O. C. J. was inclined to think that though the widow held an absolute estate from her husband by virtue of the will the adoption would have the

effect of divesting her of that estate and vesting it in the adopted son. Referring to the observations of the Judicial Committee in AIR 1927 139 (Privy Council) extracted above, the learned Judge remarked that some distinction should be

made between a devise to the widow and a devise to a third party. He further thought that no distinction can be drawn between the divesting of a widow''s estate by an adoption and the divesting of an absolute estate by an adoption.

With great respect to the learned Judge I cannot accept either view of his, and certainly I cannot subscribe to his view that by making an adoption . the widow must be presumed to divest herself of her absolute estate of her own free will

Reilly, J. took the contrary view. He said

So far as I can see, there is no legal principle on which an absolute estate created by the husband''s will in favour of his widow or anyone else can be divested by a subsequent adoption unless we can treat the adoption as so relating

back to the lifetime of the husband as to destroy in respect of ancestral property his power of disposition by will, a view which the opinion expressed by the Privy Council in -- AIR 1927 139 (Privy Council) precludes us from taking.

12. In spile of the difference of opinion on this point both the learned Judges concurred in their final order allowing the appeal because they found that even if the widow had an absolute estate she conveyed the same to the adopted son

by another deed.

13. The next case of -- Erram Reddy Chenchu Krishnamma Vs. Maram Reddy Lakshminarayana and Another, , was decided earlier than the case of -- '' AIR 1928 Mad 113 (E)'', and is referred to by Reilly, J. in his judgment. As that

learned Judge points out, the actual decision therein rested on the construction of the particular will in question. In that case the will gave an absolute estate to the widow and also a power to adopt if she wished. The learned Judges

construed the will as making a provisional bequest in favour of the widow subject to the exercise of the power to adopt and held that on the election by the widow to exercise the power and make the adoption the provisional bequest

came to an end. It is not for me to say if the learned Judges were right in the construction they placed on the will. But I certainly protest against any one relying upon the decision as authority for the proposition that whenever a widow

makes an adoption she is divested of the absolute estate which was bequeathed to her under a will made by her husband which was otherwise valid and which he was competent to make. Srinivasa Iyengar, J. expressed himself strongly

on the legal point:

.....but there can be no doubt whatever that on the principle of the thing it cannot be that a person who is the full, and absolute owner at the moment of his death cannot validly dispose of his property by will merely because he has given

permission to his widow to make an adoption. Their Lordships in view of the theory of the adoption of a son by the widow to her deceased husband relating back to the time of death of the person to whom the adoption is made being

only a legal fiction and of the fact that such adoption is only a subsequent legal act, have in clear and indubitable terms laid it down that in such cases the will must take effect.

I do not think either ruling is of any assistance to us. In the absence of any authority binding on us, I must reject this contention of Mr. Rajagopala Ayyangar.

14. The next point of controversy concerns the applicability of the Madras Impartible Estates Act of 1904 to the Vizianagaram ''Raj'' in the hands of Chittibabu. This point assumes importance because of its bearing on one of the main

questions in the case, namely, what is the nature of the payment of Rs. 5000 per month provided by Clause 14 of Chittibabu''s trust deed (Ex. P-11). If the Impartible Estates Act applied to Chittibabu and the estate in his hands then his

powers of disposition and alienation would be considerably fettered by Section 4 of the Act (2 of 1904). If the Act did not apply and Chittibabu was competent to deal with the estate as if it were his separate property all the provisions of

the trust deed will be binding not only on him but also on his successors including the plaintiff. All this is only as regards the estate of Vizianagaram (including Kasipuram). Obviously the Impartible Estates Act can have no application

whatever to the properties other than the Impartible Estates which are also covered by the trust deed.

15. I have held that Chittibabu obtained his title to the Vizianagaram estate under the will of Ananda Gajapathi. It was not disputed before us that in the hands of an alienee the incident of impartiality would not attach to the estate. The

contention on behalf of the Raja is that on the passing of the Impartible Estates Acts of 1902, 1903, and finally of 1904, the estate even if it ceased to have the nature of an impartible estate during the interval, thereafter became an

impartible estate, to which the Act applied.

16. It is a matter of history that the immediate reason for embarking on this legislation was the ruling of the Privy Council in --''Venkata Surya Mahipati Rama Krishna Rao Bahadur v. The Court of Wards'', 22 Mad 383 (PC) (G). The

judgment of the Privy Council was pronounced in February 1899 and soon thereafter there was such an agitation among the zamindars of this Province that we find the First Madras Impartible Estates Act being passed by June 1902.

''The Act was obviously intended to preserve the ancient zamindaries of the Presidency. The Act contained a schedule. As explained in the statement of objects and reasons the schedule contained only permanently settled estates in

existence before the date of the Permanent Settlement Regulation and which had been declared by judicial decision to be impartible or locally considered by ancient custom to be so and had in fact descended without partition since that

date. Vizianagaram was included in the schedule. Section 2 of the Act ran thus:

The estates included in the schedule hereto annexed shall be deemed to be impartible. In the case of any estate not included in the schedule, if it be hereafter judicially declared that such estate is impartible, such estate shall thereupon be

deemed to have been included in the schedule.

Section 3 restricted the powers of alienation of proprietors of the estates so declared to be impartible. The proprietor''s powers were the same as the powers of a managing member of a joint Hindu family governed by the ordinary law of

succession in respect of ancestral property. Section 4 provided that the Act shall not apply to

(a) portions of estates included in the schedule which had before the coming into force of the Act been permanently transferred from the registered proprietors either by Court sale or by voluntary alienation, or

(b) portions of such estates which may be permanently alienated or transferred in future in the exercise of the restricted powers recognised in Section 3, or

(c) portions of such estates which may be permanently transferred from the registered proprietors in execution of decrees for debts incurred before the coming into force of the Act.

17. Section 6 contemplated the exclusion of any of the estates from the schedule and also legal proceedings in respect of such estates. This Act was a temporary measure and continued in force for one year. Madras Act 2 of 1903 was

passed to continue the operation of the Act of 1902 till 31-3-1904. It also excluded certain estates which had been included in the schedule to the Act of 1902 and also provided that if in any pending suit or proceeding it be finally

decided that any of the estates named in the schedule to the Act of 1902 was partible such estate shall be deemed not to have been included in the schedule. Then came finally Madras Act 2 of 1904, the permanent enactment which took

the place of the temporary Act of 1902. The statement of objects and reasons for this enactment recites the general object and reason for the legislation, namely, the preservation of the ancient zamindaries of the Presidency. The Act,

according to this statement was intended to declare the estates named in the schedule to be impartible and also to lay down the law for impartible estates generally. In the schedule to this Act Vizianagaram finds a place.

I cannot accept the suggestion made at the Bar on behalf of the appellants that the schedule was prepared tentatively and without reference to the actual state of affairs and circumstances pertaining to each of them. There is one sentence

in the statement of objects and reasons which to my mind conclusively snows that those who prepared the schedule were aware of the circumstances pertaining to the several estates mentioned therein. That sentence is this :

The holders of all the estates included in the Schedule are Hindus.

I do not think it idle speculation if I went further and said that not only were the framers of the Bill aware that the holders of these estates were Hindus, they were also aware that in respect of some of those estates there had been wills or

settlements and also that nevertheless the persons who became entitled to the estates were also the persons who would have succeeded to the estates in accordance with the rule of lineal primogeniture which applied to succession to

these estates according to custom. I need only refer to the instance of Pithapuram in which the estate was bequeathed to the ''aurasa'' son of the testator. In the present case Chittibabu would have on his adoption succeeded to the estate

according to this rule.

18. Section 3 of the Act of 1904 corresponds to Section 2 of 1902 Act and it declares that the estates included in the schedule shall be deemed to be impartible estates. In my opinion it is impossible for the appellant to contend

successfully that in spite of this express declaration it is open for this Court to hold that the Vizianagaram Estate is not an impartible estate governed by the Act. The learned Attorney General urged that even if it be held that Vizianagaram

was an impartible estate still Chittibabu was not ""the proprietor of an impartible estate"", because the definition of that expression contained in Section 2 (3) of the Act is

the person entitled to 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 succession to

impartible estates in southern India"",

Chittibabu was not entitled to possession of the estate under the special custom of the family but as the devisee under the will of Ananda Gajapathi. So the argument ran, art argument which appears plausible but in my opinion is not

sound. In fact, if this argument is accepted, it means that the inclusion of the estate in the schedule does not have the effect of making the provisions of the Act applicable to the estate -- a contingency which obviously could have been

contemplated by the legislature. The inclusion in the schedule and the declaration in Section 3, if they have any meaning and significance, must imply that the provisions-of the Act applied to the estates so included. In a case like the

present I think I ought to invoke the opening clause in Section 2, namely, ""unless there is something repugnant in the subject or context"". When Section 3 declared that the Vizianagaram estate shall be deemed to be an impartible estate,

and an impartible estate according to the definition in Section 2 means an estate descendible to a single heir and subject to the other incidents of Impartible Estates in Southern India it follows logically that the proprietor of that estate is the

proprietor of an impartible estate. Mr. Setalwad relied also on Section 7 of the Act to escape from the Act. That section says that the Act shall not affect alienations made or debts incurred before the coming into force of that Act. As the

will of Ananda Gajapathi took effect before the coming into force of the Act, it is contended that the Act will not apply to the estate which had been thus alienated before the Act. Firstly, the section does not say that the Act shall not

''apply'' to estates or portions of estates alienated before the coming into force of the Act. Secondly, I do not think that the bequest in favour of Chittibabu would strictly fall within the scope of the term ""alienations"" in that section. Here

again we cannot read Section 7 in such a way as to make Section 3 nugatory in any manner. There is the express declaration in Section 3 made at a time long after the devise of the estate by Ananda Gajapathi to Chittibabu that

Vizianagaram included in the schedule shall be deemed to be an impartible estate. Section 7 does not have the result of destroying the effect of this declaration.

It may be mentioned that the language of Section 4 of the Act of 1902 which corresponded to Section 7 of the 1904 Act was slightly different. That section ''inter alia'' declared that the Act ''shall not apply'' to portions of estates included

in the schedule which had before the coming into force of the Act been permanently transferred from the registered proprietor either by Court sales or by voluntary alienations. It is only in the event of a Court deciding in any suit,

proceeding or appeal which had been permitted to proceed by the Madras Impartible Estates Act, Continuing Act of 1903, that any Estate named in the Schedule is partible that such estate shall be deemed not to have been mentioned in

the schedule. In the absence of such suit or proceeding the estates mentioned in the schedule must be deemed to be impartible estates to which the Act applies.

19. Reliance was placed by Mr. Setalvad on the statement of the law in Mayne''s Hindu Law and Usage and the ruling of the Privy Council in -- AIR 1939 95 (Privy Council) in support of his contention that an impartible estate on an

alienation ceases to possess the characteristic of impartibility. In Mayne''s Hindu Law and Usage (Edn. 11) at page 847 is the passage that is relied on which runs thus :

But, of course, the Madras Impartible Estates Act does not apply to an estate or part of it, even though it be a scheduled estate, which estate or part had been validly alienated prior to the Act (Section 7). Nor can Section 4 of the Act

restrict the powers of an owner, who at the commencement of the Act came into possession of an impartible estate not as an heir but under a valid gift or devise.

20. The foot note refers to the decision in -- Ulagalam Perumal Sethurayar Avergal and Others Vs. Rani Subbalakshmi Nachiar, and adds:

the definition of a proprietor of an impartible estate requires that he should be entitled to possession thereof as a single heir under a special family custom or under the general custom in Southern India.

21. In the tenth edition similar passages occur, though in the foot note there is reference only to the decision of the High Court in -- ''Ulagalum Perumal''s case (I)''. With great respect to the learned editors I do not think that the above

view is warranted either by the sections of the Act or by the ruling of the High Court or Privy Council in -- ''Ulagalum Perumal''s case (I) & (H). I have already dealt with Section 7 and its scope. I shall now deal with the decision which is

cited as authority for the view. In that case four days before the coming into force of the Impartible Estates Act of 1902 the then Zamindar of Urkad executed a deed of settlement settling the Zamindari after his life absolutely on the child

to be born by his second wife. He had at the time a son by his first wife. Eventually a son was born to the second wife. The Zamindar married a third wife and by her he had a son Ulagalum Perumal. The Zamindar died on 7-1-1907 and

on his death the son by his second wife, Meenakshisundaram, took the estate. He died in July 1829 leaving behind him his widow Subbulakshmi. Contest as to the right of succession was between Subbulakshmi, the widow of

Meenakshisundaram, and the third wife''s son Ulagalum Perumal.

The short question which arose for decision was whether the estate in the hands of Meenakshisundaram was joint family property or separate property. If Meenakshisundaram held the estate as joint property, then according to the

customary rule of succession, Ulagalum Perumal would be entitled to the estate. If, however, Meenakshisundaram took the estate as his separate property then his widow would exclude his brother. It was decided by this Court that

Meenakshisundaram got the property under the settlement deed executed by his father and therefore the property could not go by survivorship to his brother but would descend by succession to his widow. The question did not arise

whether the estate ceased to be impartible. The Privy Council affirmed the decision of the High Court. The argument of learned Counsel for the appellant was that in spite of the settlement excluding the eldest son the property still retained

its character as joint family property. Their Lordships held that it was competent for Meenakshisundaram to take the estate as self-acquired property because there was no rule of law to prevent his father, the Settlor, from giving it as

such. They further held that as the interest given to Meenakshisundaram must be regarded as his separate property his widow would exclude his brother. Their Lordships refer to a prior decision in -- AIR 1939 22 (Privy Council) which

affirmed the decision of the Allahabad High Court. In that case a Hindu governed by the Mitakshara law made a will bequeathing half the estate to his eldest son and half to his second son. The younger son died leaving an only daughter.

One of the issues was whether the daughter could take the estate by inheritance on the death of younger son. The Allahabad High Court held that the property in the hands of the younger son must be treated as self-acquired property for

the purpose of descent to his heirs. This view was not challenged at the hearing before the Board.

Their Lordships then cite a passage from the judgment delivered by Sir George Lowndes in that case on which reliance was placed by Mr. Setalvad. It runs thus :

Assuming, as their Lordships do in this judgment, that a moiety of the estate passed by the will of Raja Fateh Singh to Vijai Varma it is admitted that it would be partible property in his hands and would descend as such on his death.

With the greatest respect to His Lordship the admission was that it would be separate property in his hands. No question arose whether it was partible or impartible. In fact the term ''partible'' is generally applied to joint family property

available for partition among the coparceners. There is no room, however, for doubt on this matter because of the following observations of their Lordships made immediately after the above citation :

While their Lordships do not doubt that the High Court of Allahabad rightly held in that case that the property in question, if it passed under the will to Vijai Verma, became his self-acquired property, they are not to be taken as affirming

that any different result would have ensued had Vijai Verma been the person entitled to inherit."" In my opinion all that was laid down by their Lordships in -- AIR 1939 95 (Privy Council) was that an alienee from a holder of an impartible

estate takes the property as his separate or self-acquired property and not as joint family property. It must not be overlooked that an impartible estate can be either joint family property or. separate property and the rule of succession

would differ in each case. This is clearly pointed out in a later pronouncement of their Lordships in -- AIR 1943 196 (Privy Council) At page 201 their Lordships say: ""Now an impartible estate is not held in coparcenary -- ''Sartaj Kuari

v. Devraj Kuari'', 10 All 272 (PC). CD, though it may be joint family property. It may devolve as joint family property or as separate property of the last male owner. In the former case it goes by survivorship to that individual, among

those male members who in fact and in law are undivided in respect of the estate, who is singled out by the special custom i.e., lineal male primogeniture. In the latter case jointness and survivorship are not as such in point : the estate

devolves by inheritance from the last male owner in the order prescribed by the special custom or according to the ordinary law of inheritance as modified by the custom.

22. It must therefore be held that Madras Act 2 of 1904 applied to the Vizianagaram estate in the hands of Chittibabu. It will follow that his power of alienation in respect of the estate was restricted by Section 4 of the Act.

23. Then I come to the trust deed executed by Chittibabu on 28-10-1912 (Ex. P. 11). This deed covered not only the impartible estate ""but also other properties, viz.,

1. the properties obtained by Chittibabu under the will of Ananda Gajapathi,

2. the properties which he obtained under the will of Alak Rajeswari, his adoptive mother, and

3. properties acquired by him.

24. The properties which Chittibabu obtained under the will of Ananda Gajapathi comprised, as we have seen, the properties, which Ananda Gajapathi inherited from his father as well as properties acquired by him. When Ananda

Gajapathi executed his will Chittibabu was a stranger. He had not been adopted to Viziarama. There would be no scope for the application of the rule in AIR 1943 196 (Privy Council) . The property would be according to the ordinary

Mitakshara law the separate property of Chittibabu because it was acquired without any detriment to his father''s estate. The position, therefore, was that, of the properties comprised in Ex. P. 11, Chittibabu had restricted power of

alienation so far as the impartible estate was concerned but absolute powers as regards the other properties. It is now necessary to deal in some detail with the provisions of the trust deed. The immediate reason for its execution is recited

in the deed as the necessity to provide for the discharge of certain debts which Chittibabu had incurred which were not binding as against the impartible estate. It recites that if the properties were immediately conveyed to a trustee for the

benefit of Chittibabu''s eldest son, then a minor, then his private debts would be treated as binding debts and would be discharged.

The following passages in the preamble are noteworthy :

Whereas the settlor is seized and possessed of or entitled to as for an estate of inheritance all that impartible estate and Zamindari descendible to a single heir according to the law and custom of primogeniture applicable to similar estates

in Southern India more particularly described in the First Schedule hereunder written and commonly called the Vizianagaram Zamindari or Samasthanain and also the various other properties in the Presidencies of Madras and Bengal and

the United Provinces more particularly described in the said First Schedule together with all appurtenances thereto for diverse other good causes and considerations the said settlor desires and has agreed to convey the said several

properties mentioned in the first schedule .....

The conveyance is made of all the properties except a few items mentioned to the trustee:

To have and to hold the said Zamindari of Vizianagaram, its accretions and appurtenances and all the other premises hereby granted, conveyed and assigned for the benefit of the said Alak Narayan Gajapathi Raj upon trust and subject

to and in accordance with the several provisions, directions and declarations hereinafter contained concerning the same.

On Alak Narayana''s attaining the age of 21 the trustee was to convey and transfer to him all the properties so that he (Alak Narayana) may have the same kind and nature of interest he would have if the same were now to devolve upon

him by right of inheritance, but subject nevertheless to such declarations, charges and provisions hereinafter contained as may then remain subsisting. Clauses 13 to 20 provide for monthly allowances, marriage and other expenses and

rights of residence to the Settlor and members of his family.

The following is a summary of such provisions :

1. a monthly allowance of Rs. 8,000 till debts are discharged and Rs. 10,000 thereafter to the settlor for his maintenance and an annual sum of Rs. 30,000 for tour charges of himself and his family (Cl. 13).

2. a monthly allowance of Rs. 5,000 to the settlor''s second son Vijaya and a provision for a suitable house:

(3) reasonable maintenance to son or sons who may be born to the Raja thereafter;

4. a monthly allowance of Rs. 6000, an annual sum or Rs. 40,000, in consideration of her surrender of certain rights and an annual sum of Rs. 24,000 for travelling expenses to the Maharani of Rewa;

5. marriage and funeral expenses of the members of the family;

6. an annual sum of Rs: 2 lakhs for the maintenance, education and other expenses of Alak Narayana or his heir;

7. the right of residence of the settlor and his family in the palaces;

8. provision for settlor''s personal staff and kitchen and carriage expenses.

25. Under Clause 21(6) the trustee is directed to apply such part or parts of the rents, income and profits of the trust properties as may be required for payment to the several persons mentioned in the trust, the monthly sums, allowances

and other expenses made payable under the deed. Clause 23 empowers the trustee even to sell or to borrow money to pay the said allowances as well as to pay off the debts and meet other expenses. The last clause is important in many

ways and runs thus :

provided always that as it is impossible to foresee all the events that may happen and the future circumstances of the family and of the properties which are the subject of this settlement and to provide hereby for the due and proper

management of these premises, it is hereby provided that the trustee may with the previous consent in writing of all members of the Committee for the time being and with and subject to the previous sanction of the Government of Madras

and with the approbation of the Advocate General of Madras for the time being at any time or limes hereafter, by any deed or deeds to be executed in the presence of and attested by one or more witnesses and duly registered, add to,

extend, release, revoke and vary in such manner and upon such terms consistently with the preservation of the estate in the family and the provisions of the Madras Impartible Estates Act 2 of 1904 as the trustee with such consent,

sanction and approbation as aforesaid may think at all or of any of the powers and provisions and declarations in this present deed of . trust contained.

Much of the controversy at the Bar centered round the question whether the amount of Rs. 5,000 made payable to Vijaya under Clause 14 was by way of provision for maintenance. Though the question was posed in this way the real

question was whether this amount was capable of being varied, particularly decreased by reason of change of circumstances. The plaintiff was anxious to convince us that it was for maintenance because of the necessary implication that an

amount fixed for maintenance can be varied with change of circumstances. Equally the anxiety of Vijaya was to persuade us to hold that it was an absolute grant of a sort of annuity and therefore unalterable. In my opinion, it is idle to

attach too much importance to the use of words like ""maintenance"" or ""allowance"" in this document as well as in subsequent documents including letters addressed by the parties. In some places we have an expression like ""maintenance

allowance"" while in other places the words are used separately without any apparent distinction made between the two.

After giving my best consideration to this question I am of opinion that it was not the intention of the settlor, Chittibabu, that this amount of Rs. 5000 per month should be liable to variation, particularly by way of diminution, I gather this

intention from the several clauses of the deed itself and the circumstances under which the deed was executed. I do not think that the subsequent conduct of the parties would have a material bearing on the question. On the date of the

deed Chittibabu was the holder of the impartible estate of Vizianagaram. He was also the absolute owner of properties which he had obtained under the will of Ananda Gajapathi and under the will of Alak Rajeswari as well as properties

acquired by himself. By this trust deed he was conveying practically alt his properties to the trustee for the benefit of his elder son, Alak Narayana. Vijaya, the second son had already been born and he was a minor. The result of the

conveyance to Alak Narayana would mean leaving Vijaya with nothing. There is no reason for Chittibabu to treat the second son in any unfair way. If Chittibabu had not executed the trust deed and had died intestate all the properties left

by him except of course the impartible estate would have devolved on both Alak Narayana and Vijaya jointly. Chittibabu was depriving Vijaya of his share by the execution of this trust deed. Chittibabu naturally thought he should make

some provision for Vijaya. Likewise he wanted provisions to be made not only for himself but also for any sons who may be born to him in future and to his sister, the Maharani of Rewa. Looking at the provisions in Clauses 13 to 20 it

will be noticed that some provisions are obviously intended to last only during the life time of the settlor himself. Others would subsist even thereafter and so long as the trustee was functioning it was his duty to implement those provisions.

But we find unmistakable evidence of Chittibabu''s desire to emphasise the fact that Alak Narayana (and his heirs) should be bound to carry out all the directions contained in the several clauses of the trust deed.

In the preamble it is stated that the settlor desired that in the properties settled his eldest son Alak Narayana should have the same kind and nature of estate as he would have subject nevertheless to the payments of the maintenance and

other allowances to the Raja and some other members of the family. The operative clause, namely, Clause 3 is very specific. The conveyance is for the benefit of Alak Narayana but ""subject to and in accordance with the several

provisions, directions and declarations hereinafter contained."" In Clause 4 which provides for the transfer of the properties to Alak Narayana after he had attained the age of 21 years this is again reiterated. Alak Narayana will take the

properties ""subject nevertheless to such declarations, charges and provisions herein contained as may then remain subsisting."" I particularly mentioned these terms of the deed because they expressly impose the liability to implement the

several provisions on Alak Narayana. Of course there are other provisions enjoining the trustee to carry out the provisions (vide Clause 21). Alak Narayana was not entitled to any of the properties on the date of execution of the trust

deed. It was only because of and under the trust deed that he became entitled, to all these properties immediately. After he became a major there is evidence that he wanted to take possession of the properties even before he was 21

years old. In his attempt he was supported by the opinion of the eminent lawyer, Mr. S. Srinivasa Iyengar (Ex. P. 27), namely that the trustee was bound to transfer the trust property to Alak Narayana as he had attained majority though

not the age of 21.

Meanwhile Chittibabu himself died and the properties were handed over to Alak Narayana soon thereafter. In my opinion, Alak Narayana took all the properties subject to the liabilities imposed by Chittibabu under the several clauses of

the trust deed including Clause 14 under which Vijaya was entitled to a monthly payment of Rs. 5000. For the payment of this and other similar amounts all the properties covered by the trust deed were liable, though it may be difficult to

maintain the position that the impartible estate by itself would have been liable for the entire amount of Rs. 5000 except on the footing that the amount represented a proper rate of maintenance to which Vijaya would have been entitled in

accordance with the prevailing custom. I do not think it is necessary for me to say more on this point after the pronouncement of their Lordships of the Supreme Court in the appeal which went up to that Court from the decision of the

Allahabad High Court.

His Lordship the learned Chief Justice observed as follows referring to the trust deed:

It is obvious that Alak Narayana having taken the benefits of this settlement was bound, after the properties were handed over to him by the trustee, to discharge the obligations cast on the donee including the obligation to pay the

respondent Rs. 5000 every month. Appellant''s learned Counsel did not seriously contest this position. But he urged that the obligation to pay the allowance could not be enforced by the respondent as a covenant as the respondent was

not a party to the transaction and did not claim in these proceedings to enforce any charge. We cannot accede to this contention. It is clear from the provisions of the deed quoted above that a trust was created not only in favour of Alak

Narayan but also in favour of the various persons to whom allowances were made payable, and the trustee was charged with the obligation to pay the allowances ""by, with and out of the rents, income and profits of the premises hereby

settled"" and ""to apply such part or parts thereof as may be required in payment to the several persons mentioned in this trust."" That is to say the obligation to pay the allowances was annexed to the ownership of the properties in the hands

of the trustee and when the latter transferred the properties to Alak Narayan on his attaining majority, such transfer was to be subject nevertheless to such declarations, charges and provisions herein contained. This Alak Narayan was to

hold the properties subject to all the subsisting trusts annexed to such properties and it is settled law that the beneficiary under a trust for whom a provision is made could sue to enforce its terms though he was not a party to the

transaction. It is therefore unnecessary to examine how far the rule of the English Law laid down in -- ''Tweddle'' v. Atkinson'', (1881) 1 B. and Section 393 (M) was applicable in this country. Accordingly Alak Narayan having taken the

benefits of the deed after he attained majority was liable to pay the monthly allowance to the respondent as provided for in the deed out of the properties comprised therein and that liability having devolved on Alak Narayan''s death on

the appellant, the latter would be liable to pay the allowance out of these properties unless as the respondent has lost the right to enforce such liability by reason of the transaction evidenced by the release deed executed by him on 9-10-

1944 a point which will be considered presently.

26. It is not disputed that Alak Narayan did treat the provision as to the payment of Rs. 5000 per month to Vijaya as a provision binding on him. I may refer in this connection to the final proceeding in the litigation started in 1903 by

some of the agnates of Ananda Gajapathj challenging the validity of the adoption of Chittibabu and contending that he obtained only a life estate under the will of Ananda Gajapathi. The suit O. S. No. 18 of 1903 on the file of the District

Court of Visakapatnam ended in a decree in favour of Chittibabu. There was an appeal to this Court against the decision of the District Judge (A. S. No. 114 of 1909). The appeal was not heard but a decree was passed on a

compromise (Ex. P. 16a.) The terms of the compromise were that the appellants (agnates) admitted the validity and the binding character of the adoption of Chittibabu and agreed that Chittibabu shall be entitled to hold the impartible

Zamindari and all the properties in suit as such adopted son. The appellants further accepted the decision of the District Judge that Chittibabu took under the will of Ananda Gajapathi full and absolute estate of inheritance and became

entitled to the Vizianagaram Zamindari and all other properties absolutely under the said will and also agreed that the estate was not liable to be defeated on any ground or in any contingency whatsoever. The appellants also accepted the

title of Alak Narayana who had been made a party to the appeal and to whom the Zamindari had been surrendered and transferred by Chittibabu, and Alak Narayana was declared to be absolutely entitled to the estate of Vizianagaram

and all other suit properties. There was a further deed of compromise executed subsequently in 1919 (Ex P. 16) in which similar recitals are found.

27. Before we take up the subject last mentioned in the extract from the judgment of the Supreme Court, viz., the effect of the release deed, Ex. P 36, we may deal briefly with the deed of 1928, Ex. P. 31. The material portion of this

deed runs thus:

whereas the settlor is the elder brother of the beneficiary and out of natural love and affection which the settlor bears to the beneficiary the settlor is pleased to settle for the life of the beneficiary an allowance of Rs. 5000 (Rupees five

thousand) per month besides the allowance payable to the beneficiary under the terms of the Registered Trust Deed dated 28-10-1912 executed by the father of both the parties to this document this deed of settlement witnesseth that the

settlor the Rajah of Vijianagaram above referred to has in consideration of natural love and affection which he bears to the beneficiary hereby settled upon him a monthly allowance of Rs. 5,000 (Rupees five thousand) which shall be

payable from this date to him on the first of every month during the lifetime only of the said beneficiary, the said Maharaj Vijaya Ananda Gajapathi Raj.

The contention on behalf of the Raja and his mother was that this amount of Rs. 5000 is also maintenance grant and therefore liable to reduction having regard to the change of circumstances and the financial position of the impartible

estate. I am unable to agree with this contention for its several reasons. Firstly, there is nothing in the deed describing this amount as a grant for maintenance. It was expressed to be a gift made out of natural love and affection. Secondly,

there is no indication that this amount was payable from and out of the income of the impartible estate. Indeed having regard to the attitude taken by the plaintiff in his plaint in C. S. No. 495 of 1949 viz., that this additional sum of Rs.

5,000 was not binding on the impartible estate even during the late Raja''s lifetime and was and is not binding on the impartible estate after the late Raja''s death, it will not be open to him to advance an argument that this amount is payable

from the impartible estate and therefore is in the nature of maintenance. If this be not maintenance there can be no doubt whatever as to the effect of the deed. It would bind the executant and it would also bind his legal representatives in

so far there are assets of the executant in their hands. This is exactly what the Supreme Court has said about this document.

After negativing the contention that the deed was not binding on Alak Narayana the learned Chief Justice went on to say as follows: ""If then Alak Narayan was liable under that deed to pay the additional allowance which he undertook to

pay to the respondent during his life time, the appellant, as his son and legal representative is liable to pay the same out of the latter''s estate other than the impartible estate, which it was not disputed is exempt from such liability by reason

of the provisions of Section 4 of the Act."" Indeed there was not much argument on this point before us as regards this liability.

28. Though Vijaya appeared to accept the trust deed as binding on him and in accordance therewith allowed Alak Narayan to enjoy absolutely all the properties covered by that deed and was content to claim and enjoyed the only right

which he had under that document, namely, the right to obtain a monthly payment of Rs. 5,000, he however changed his attitude almost immediately after the Court of Wards assumed superintendence of the Impartible estate and

properties of Alak Narayana in 1935. On 14-12-1935 Vijaya put in an elaborate statement of his claims before the Court of Wards (Ex. P. 34). According to him that was the proper occasion when his rights to the properties other than

the impartible Zamindari should be ascertained and his share and interest therein should be awarded to him. He put forward his own construction of the provisions of the trust deed. He stated:

It is therefore clear that though for the purpose of management all the properties including the joint family properties and personal non-zamindari properties were conveyed to the trustees, the benefit to the exclusion of the second son

sought to be conferred upon the elder son, on a true construction must be confined to the Zamindari, and that the son, as regards the rest of the properties as and when he should come into possession thereof from the trustee, is to hold

them in the same right in which he would have held, had there been no trust at all, i. e., as regards the properties other than the Zamindari the elder son merely held as managing member of the joint family or as co-heir with his younger

brother as a result of inheritance from the father on his death which took place in 1922."" ''Inter alia'' he prayed that all the properties other than the Zamindari should be equally divided between him and Alak Narayana. The question is,

what is the effect of this attitude of Vijaya in which he persisted till the execution of the release in 1944? Before dealing with this question it may also be necessary to find out the terms of this release, Ex. P. 36. In the preamble to this deed

is set out the claim made by Vijaya to the various properties other than the impartible estate. His contention as regards the trust deed is thus summed up: ""And whereas the releasor contended that in respect of the properties other than the

impartible estate his father had no right to create a trust by which his elder brother inherited them to the detriment of himself, that the trust deed had not the effect of incorporating the partible properties with the impartible estate and that

therefore all properties except the impartible estate should be divided equally between himself and his elder brother.

The deed further recites that Vijaya agreed to accept a sum of Rs. 10 lakhs ''in lieu of all the claims'' put forward on behalf of himself and his family. A further sum of Rs. 54,193 was agreed to be paid to Vijaya in lieu of his claim for a

share of the jewellery of the Maharani of Rewa. But this is not very material for us. The operative part of the release in so far as it is relevant runs thus: ""The releasor ...... relinquishes and surrenders all his claims & those of his minor sons

now living and that may be born to him hereafter and of all other members of his family:

(a) To any part of share in what was at any time the joint family property, movable or immovable, of Releasor and his father the said Chittibabu, and his brother, the said Alak Narain Gajapathiraj, or after the death of the said Chittibabu

the joint family property by survivorship of the Releasor and his brother, the said Alak Narain Gajapathiraj, except such as is now in the Releasor''s possession.

(b) To any part of or share in the separate property, movable or immovable of the Releasor''s father, the said Chittibabu, of which the said Chittibabu did not dispose by will except such as is now in the Releasor''s possession, and

(c) To any other property now under the superintendence or in the possession of the Court of Wards on behalf of the Releasees or of the said Rani Vidyavathi Devi but without prejudice to any right of succession to the impartible

Zamindaries of Vizianagaram and Kasipuram or either of them which may ultimately accrue to the Releasor or to his issue, and also without prejudice to the Releasor''s right to maintenance out of income of the said Zamindari or either of

them and further without prejudice to any claim which the Releasor may have against the separate property of his late brother, the said Alak Narain Gajapathiraj.

29. There can be no doubt whatever that by the claim put forward by him in 1935 Vijaya expressly and unequivocally disclaimed and repudiated the trust deed of 1912. Once he had done so, he cannot be heard to take any benefit under

any of the provisions of that deed.

He cannot both affirm and disaffirm that deed.

So contended the learned Advocate General that the general foundation of the law of election, namely, that a person cannot approbate and reprobate under the same instrument is well established. The principle thus stated by Jarman

equally applies to all instruments, namely.

That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions and renouncing every right inconsistent with It.

A person cannot have the benefit of such of the provisions of a settlement as give him an advantage and at the same time claim adversely to what was intended to be the rest of the settlement on the ground that it is not binding (Vide,

White and Tudor''s Leading Cases in Equity, 9th edition, Page 383, -- ''Birmingham v. Kirwan'', (1805) 2 Sch & Lef 444 (Ir) (N); -- ''Codrington v. Codrington'', (1875) LR 7 HL 854 (O) affirming -- ''Codrington v. Lindsay'', (1873)

LR 8 Ch 578 (P). I see considerable force in this argument of the learned Advocate General. Mr. Setalvad admitted that Vijaya did at one time impeach the trust deed but contended that Vijaya finally affirmed the deed under the

compromise embodied in the release deed and the plaintiff as the successor to Alak Narayana was allowed to take the properties covered by the trust deed absolutely. According to him Vijaya abandoned all his claims for a consideration

and in effect confirmed the deed. I look at what happened in a different view. Not only did Vijaya repudiate the deed and put forward claims completely inconsistent with the provisions of the deed, he further succeeded in obtaining a

benefit on the foot of such a claim. As already mentioned the release deed expressly says that the sum of Rs. 10 lakhs is ""in lieu of all the claims put forward"" by Vijaya. So, after and as a result of the lease deed the plaintiff did not retain

the entire benefit of the provisions of the trust deed. He was deprived of such benefit to the extent of Rs. 10 lakhs.

30. Mr. Setalvad relied upon the saving clauses in the release deed. The rights which were not prejudiced and were left intact were

(1) the right of succession to impartible Zamindari which may ultimately accrue to Vijaya or to his issue,

(2)Vijaya''s right to maintenance out of the Income of the impartible Zamindari, and

(3) any claim which Vijaya may have against the separate property of Alak Narayana.

31. We are not concerned with the first reservation. What does the second reservation relate to? According to Mr. Setalvad it is Vijaya''s right to a sum of Rs. 5,000 Under the trust deed of 1912. I do not agree, if that be so me easiest

thing for the parties would have been to expressly describe is as such. In my opinion the reservation is as regards ''Vijaya''s right as a junior member of the family to maintenance out of the income of the impartible estate in accordance

with the customary law which had by that time been embodied in Section 9 etc., of the Madras Impartible Estates Act of 1904. This right of Vijaya cannot be and is not disputed by the plaintiff, though there is dispute as regards the

quantum of maintenance.

32. The third reservation to my mind certainly refers to the amount of Rs. 5,000 payable under the deed of 1928 (Ex. P. 31). It was evidently common ground that this amount was not payable from and out of the income of the impartible

estate. The deed was however binding not only on Alak Narayan but also on his successors to the extent to which they had in their hands the assets of Alak Narayana and this is exactly how the Supreme Court has construed the effect of

the deed. Mr. Rajagopala Ayyangar wanted us to hold that the third reservation would not comprise all the separate property of Alak Narayana but only such of his separate property as was not under the superintendence or in the

possession of the Court of Wards. He founded this argument on the language in Clause (c) of the operative portion of the release under which Vijaya released all his clams to ""any other property now under the superintendence or in the

possession, of the Court of Wards on behalf of the releasees or of the said Rani Vidyavathi Devi"". This according to him would comprise the separate property of Alak Narayana. I do not agree with his contention which renders the third

reservation illusory. There, are two possible ways of construing these clauses so as to give full effect to both of them. Vijaya was releasing no doubt his claim to any other property under the superintendence or in the possession of the

Court of Wards, but he was preserving his claim against the separate property of his late brother, namely, his claim to have the payment of Rs. 5,000 under the deed of 1928 from and out of his separate property. Or the property

referred to in Clause (c) may refer to property not belonging to the Rajah and his brother but which the Court of Wards may be holding on their behalf, for example, properties endowed for charitable or religious purposes which the

Rajah was entitled to be in possession of and manage as hereditary trustee.

33. The fact that Vijaya cannot claim any right under the trust deed of 1912 does not mean that he is not entitled to maintenance from the impartible estate. Both according to custom and according to statute (Impartible Estates Act) he is

certainly entitled to such maintenance as may be determined by the Court having regard to the income and resources and liabilities of the impartible estate. Such amount of maintenance will however not be payable from and out of the

other properties of the Rajah.

34. There remains the consideration of the auxiliary trust deed executed by the trustee on 18-5-1914 in favour of the Dowager Maharani. The deed was executed in exercise of the power conferred on the trustee by paragraph 33 of the

trust deed of 1912. By that date the Maharani of Rewa had died and therefore the monthly allowance payable to her had ceased to be payable. The deed ''inter alia'' provided for the payment of a monthly allowance of Rs. 3,000 to her

till the debts were discharged and thereafter a monthly allowance of Rs. 6,000 a month. The questions raised with regard to this deed are:

1. Whether the trustee was competent to execute such a deed, and,

2. What is the nature of this provision, whether it is a grant of maintenance, liable to be reduced.

35. The execution of the deed was well within the powers of the trustee under Clause 33 of the trust deed. The Rani was no other than the wife of the settlor and was certainly entitled to an allowance consonant with her status as the

senior lady of the family. The obligation to pay a monthly allowance of Rs. 6,000 to the Maharani of Rewa under Clause 16 of the settlement deed had ceased with her death. Therefore, by the provision made in the deed of 1914 the

trust estate was not being burdened with a greater liability than what it was subject to on the date of its execution. I agree with my learned brother that the execution of this deed was for the due and proper management of the properties

and was certainly consistent with the preservation of the estate in the family and the provisions of Madras Act 2 of 1904. The provision of this deed of 1914 must be taken to have been incorporated in the original trust deed and the result

would be that Alak Narayana took the properties covered by the trust deed subject also to the obligation to pay this monthly allowance to the Dowager. Maharani. I may add, however, that the provision would be binding on the

impartible estate to the extent of what may be found to be properly payable as maintenance therefrom. The remaining portion of the allowance must come out of the other properties covered by the trust deed. The separate properties of

Alak Narayana would not in any event, be liable for this sum.

36. I have deliberately refrained from referring to the way in which the parties have been describing the amounts payable under Exs. P. 11, P. 31 or P. 13 whether as ""Maintenance"" or ""allowance"" because the concerned statements were

not made in circumstances which would support a plea of estoppel on either side. At no time till the present disputes arose was there any question raised as to whether these amounts could be reduced owing to change of circumstances. It

then did not matter whether the payments were by way of maintenance or by way of absolute grants. Even In the cases which went up to and were decided by the Supreme Court recently it was conceded on behalf of the Rajah that he

could not successfully press the contention that the allowances payable under the deeds of 1912 and 1928 for the period mentioned in the plaint were liable to be reduced owing to the change in circumstances since those deeds were

executed, even if they were nothing more in their nature and character than qualified maintenance payable to Vijaya under the Hindu Law. I therefore consider that much should not be made of the way in which parties chose to describe

these payments.

37. I have had the advantage of perusing the exhaustive and carefully prepared judgment of my learned brother and I agree with the final conclusions arrived at by him, namely, that Vijaya is not entitled to base any claim under the trust

deed, Ex. P. 11, that the settlement deed of 1928 Ex. P. 31 created a liability enforceable against the estate of Alak Narayana and that the Dowager Maharani is entitled to recover the amount of Rs. 6,000 as per Ex. P. 13 but from the

impartible estate to the extent which may be determined u/s 14, Madras Impartible Estates Act, and the balance from the other properties conveyed under Ex. P. 11. The quantum of maintenance which Vijaya would be entitled to under

the provisions of the Impartible Estates Act will be determined in due course.

38. In the result O. S. A. Nos. 106 and 107 of 1950 are allowed. The appellant will get her costs in the appeals and in the suits; one set.

39. O. S. A. Nos. 108 and 109 of 1950 are allowed in part. There will be no order as to costs here and at the trial.

Venkatarama Ayyar, J.

40. These appeals arise out of two suits instituted by the Rajah of Vizianagaram in the Court of the Subordinate Judge of Vizagapatam, which were eventually transferred to this Court and numbered as C. S. Nos. 494 and 495 of 1949.

The relationship of the parties will appear from the following genealogical tree:

SIR VIJAYARAMA GAJAPATHI RAJ I (d. 1879)

=Alak Rajeswari (d. 1901)

|

_____________________________________________

| | |

Maharani of Rewa Sir Ananda Chitti Babu (adopted on

(d. 14.12.1912) Gajapathi 18.12.1897) (d. 11.9.1922).

(d. 23.5.1897) =Lalithakumari Devi

|

____________________________________

| |

Alak Narayana Gajapathi Sir Vijayananda

(d. 25.10.1937) Gajapathi

=Vidyavathi Devi

|

_________________________

| |

Vijayarama Gajapathi Visweswara Gajapathi

Raj II (Plaintiff)

41. Vijayaram Gajapathi Raj I was the proprietor of the Vizianagaram and Kasipuram zamindari from 1845 to 1879. During this period he acquired considerable properties including an estate called the Benares Estate. He died in 1879

leaving him surviving his widow Alak Rajeswari, a son Anand Gajapathi and a daughter called the Maharani of Rewa. Ananda Gajapathi succeeded to all the properties held by Viziaram Gajapathi Raj and in his turn he also acquired

some properties. He died on 23rd May, 1897 issueless, his wife having pre-deceased him. On 22-7-1896 he had executed a will, Ex. P. 6 under which he bequeathed all his properties to one Chitti Babu who was the brother''s son of

Alak Rajeswari, subject to the payment of certain legacies. The construction of this will is one of the main questions for determination in this litigation. The will also contemplates the adoption of Chitti Babu by Rajeswari and he was in fact

adopted by her on 18-12-1897. On 28-10-1912 Chitti Babu executed a deed of trust, Ex. P. 11 under which he settled all the properties which he got under Ex. P. 6 and also the properties which he himself had acquired, on his elder

son, Alak Narayana. who was then a minor aged about ten, subject? to the payment of various allowances mentioned therein. One of those allowances was a payment of Rs. 5,000 per mensem to his second son Vijayananda Gajapathi

who was then a minor aged about seven.

On 18-5-1914 Mr. Robertson the trustee functioning under Ex. P. 11 executed an auxiliary trust deed, Ex. P. 13 under which Rani Lalitha Kumari wife, of Chitti Babu was to be paid an allowance of Rs. 6,000 per mensem and this was

in the purported exercise of the power conferred on him under para 33 of Ex. P. 11. On 11-9-1922 Chitti Babu died and his elder son, Alak Narayana Gajapathi Raj came into possession of the zamindari and the other properties

mentioned in Ex. P. 11 in the beginning of October, 1922. On 11-2-1928 he executed Ex. P. 31 under which an additional sum of Rs. 5,000 per mensem was made payable to his brother Vijayananda Gajapathi. In 1935 the estate was

taken over by the Court of Wards and while it was in their management Vijayananda Gajapathi put forward a claim that the properties comprised in the trust deed, Ex. P. 11, other than the zamindari, were joint family properties which

were liable for partition, that he was entitled to a half share therein and that the trust deed, Ex. P. 11 was inoperative in so far as it related to those properties. It must be mentioned that he was a minor on the date of Ex. P. 11 and that he

attained majority only after the death of Chitti Babu. This claim Was investigated by the Court of Wards and ultimately it was settled by Vijayananda Gajapathi releasing all his claims to those properties for a consideration of Rs 10 lakhs;

vide Ex. P. 36, release deed dated 9-10-1944.

42. Alak Narayana died on 25-10-1937 while the estate was in the management of the Court of Wards and on his death the present plaintiff who is the elder son became the proprietor of the zamindari. As he was a minor, the zamindari

and the other properties continued to be in the management of the Court of Wards until 1-7-1946 when the plaintiff took charge of the same. On 3-8-1946 the plaintiff wrote to Dr. Vijayananda Gajapathi that the payment of Rs. 5,000

fixed under Ex. P. 31 would be discontinued and that whether the allowance fixed under Ex. P. 11 should be continued at the same rate would be ""decided on a consideration of all the relevant factors"". This was followed by a further

communication dated 2nd October, 1946 suspending the payment of the sum of Rs. 5,000 fixed under Ex. P. 11. Dr. Vijayananda Gajapathi replied by filing an action, C. S. No. 133 of 1946 on the file of the Court of the Civil Judge,

Benares, for recovery of the arrears due under both Exs. P. 11 and P. 31. The suit was contested and most of the questions which arise for determination in this litigation were also agitated in the suit such as the nature of the estate taken

by Chitti Babu under Ex. P. 6, the effect of his adoption and of the passing of the Madras Impartible Estates Act, (Act II of. 1904) on the title which he got under Ex. P. 6, the scope and effect of Exs. P. 11 and P. 31 and of the release

deed, Ex. P-36. The suit was decreed by the Civil Judge of Benares and that decree was substantially affirmed on appeal in F. A. No. 31 of 1948 by the High Court of Allahabad though on different grounds.

43. While the suit was pending in the Court of the Civil Judge, Benares, the Rajah of Vizianagaram commenced two actions out of which the present appeals arise. In C. S. No. 494 pf 1949 he alleged that the allowances fixed in favour

of Dr. Vijayananda Gajapathi under Exs. P-11 and P-31 and in favour of Dowager Rani Lalitha Kumari under Ex, P-13 were maintenance allowances and that in view of the altered circumstances they were liable to be reduced u/s 145

Madras Impartible Estates Act, and he prayed that the proper maintenance payable to them might be determined. Both Dr. Vijayanand Gajapathi and Dowager Rani Lalitha Kumari contested the suit. They contended that (1) Chitti Babu

became entitled to the estate absolutely under the will of Ananda Gajapathi, Ex. P. 6, that he was competent to execute Ex. P-11 and that the plaintiff had no right to question the same; (2) that the Impartible Estates Act did not apply to

this estate which had vested in Chitti Babu under Ex. P-6 on 23-5-1897, and that as further, he was not a proprietor as defined in that Act, he was not fettered by the limitations imposed u/s 4 of that Act; (3) that the amounts payable

under Exs. P-11, P-13 and P-31 were not maintenance allowances and they were not liable to be reduced u/s 14 of the Act and that (4) even if the trust deed Ex. P-11 could not take effect as against the zamindari it would be valid and

operative with reference to the properties other than zamindari, over which Chitti Babu had absolute power of disposition, that Alak Narayan would not be entitled to those properties except under Ex. P-11 and he having elected to take

under that deed he was also bound by the trusts and obligations created thereunder.

44. The rejoinder of the plaintiff to these contentions ''seriatim'' were (1) Ex. P-6 did not confer an absolute estate on Chitti Babu but created an estate in tail which is repugnant to Hindu Law and void and therefore, Chitti Babu took only

a life estate and that Ex. P-11 could not, therefore, enure beyond his lifetime; (2) that even if Chitti Babu got absolute estate under Ex. P-6 it was displaced by his title as an adopted son and that it was further cut down by the operation of

the Impartible Estates Act (Act II of 1904) and became subject to the limitations u/s 4 of that Act; (3) that the allowances fixed under Exs. P-11 and P-13 were only in discharge of an obligation to maintain and that they were liable to be

reduced u/s 14 of the Act. With reference to Ex, P-31 the plaintiffs contended that the sum of Rs. 5000 agreed to be paid thereunder was only an addition to the amount of maintenance fixed under Ex. P-11 that it was liable to be paid

only out of the zamindari and not personally and that, therefore, it was also liable to be reduced in the same manner as the amount fixed under Ex. P-11 and (4) that even if Alak Narayan was precluded from disputing the validity of the

trusts and obligations under Ex. P-11 on the ground that he had elected to take thereunder, Dr. Vijayananda Ganapathi would be estopped from putting forward any claim under Ex. P-11 inasmuch as he disputed the right of Chitti Babu

to settle the properties other than the zamindari under Ex. P-11 claimed a sharp therein and received a sum of Rs. 10 lakhs in lieu of that claim as per Ex. P-36 and had thus disaffirmed Ex. P-11. This last contention based on Ex. P-36 is

available only against Dr. Vijayananda Gajapathi and not against dowager Rani Lalitha Kumari Devi, she being unaffected by the release but as against her there is a special contention put forward by the plaintiff that under the terms of Ex.

P-11 the trustee had no power to execute such a deed and that in any event it would not be binding on the estate in the hands of Alak Narayan or the plaintiff. These are the substantial contentions arising for determination in C. S. No.

494 of 1949. It only remains to add that this suit is concerned only with the zamindari property and the rights of the defendants under Exs. P-11, P-13 and P-31 in relation thereto.

45. C. S. No. 495 of 1949 is a suit for partition of the family properties other than the zamindari held by Alak Narayan. It was agreed that those properties were divisible among his heirs who are the plaintiff, his brother, Visweswara

Gajapathi and their mother Vidyavathi Devi, who would be entitled to a share under the Hindu Women''s Rights to Property Act, (Act XVIII of 1937) and a preliminary decree for partition was passed by consent on 11th January 1950.

Dr. Vijayananda Gajapathi and Dowager Rani Lalitha Kumari were impleaded as defendants in this suit as it was necessary to determine the extent of the liability of the estate to their claims under Exs. P-11, P-13 and P-31 before a

division could be effected. Thus the same questions are involved in both the suits.

46. While the suits were pending in this Court the Madras Estates Abolition Act, (Act 26 of 1948) became law on 19-4-1949 and under that Act a notification was issued bringing the provisions of that Act into force with reference to the

zamindari of Vizianagaram and Kasipuram as on 7-9-1949. The result of that notification was that the title to the zamindari stood transferred to the Government as on that date and the rights of the zamindari, the creditors and the

maintenance holders became thereafter transferred to the compensation amount payable under that Act.

47. The rights of the parties under Exs. P-11 P-13 and P-31 up to 7th September, 1949 will be however governed by the decision in these suits.

48. The suits were heard by Mr. Rajagopalan, J. who held ''inter alia'' that the will of Ananda Gajapathi created an estate tail and was therefore void, that in consequence Chitti Babu took only a life estate under Ex. P-6 and that Ex. P-11

could not therefore, be valid beyond his lifetime; that the provisions of the Impartible Estates Act applied to the zamindari that the allowances granted under Exs. P-11, P-13 and P-31 were in lieu of claim for maintenance and that they

were payable only out of the zamindari and liable, to be reduced u/s 14. With reference to the claim of Dowager Rani Lalitha Kumari, he hold that she was entitled to be maintained out of the ancestral partible joint family properties in the

hands of Alak Narayan. It is against this judgment that the present appeals have been preferred. O. S. A. Nos. 107 and 106 of 1950 are appeals preferred by the Dowager Rani Lalitha Kumari against the judgment in C. S. Nos. 494

and 495 of 1949 respectively and O. S. A. Nos. 108 and 109 of 1950 are appeals preferred by Dr. Vijayanand Gajapathi against the judgment in C. S. No. 494 of 1949 and 495 of 1949 respectively.

49. While these appeals were pending in this Court the Rajah of Vizianagaram took up the decision of the Allahabad High Court in --''F. A. No. 31 of 1948'', in appeal to the Supreme Court and that was disposed of by a judgment

dated 6-12-1951. The views expressed therein about the scope and effect of Ex. P-11, P-31 and P-36 have a material bearing on the points which arise for determination in these appeals,

50. The questions argued before us in these appeals are :

1. Did Chitti Babu take an absolute estate under Ex. P-6 or only a life estate; (2) If it was an absolute estate, was it displaced by his adoption on 18-12-1897; (3) Was the title of Chitti Babu under Ex. P-6 cut down by the operation of

the Impartible Estates Act, (Act 2 of 1904); (4) Are the allowances fixed under Exs. P-11, P-13 and P-31 in lieu of maintenance payable to the parties; (5) Was Alak Narayan estopped from disputing the rights of the defendants under

Ex. P-11 & Ex. P-13 by reason of having elected to take under Ex. P-11; (6) Is Dr. Vijayanand Gajapathi estopped from claiming under Ex. P-11 by reason of the release deed Ex. P-36; (7) is Ex. P-13 not valid as being beyond the

powers of the trustee under Ex. P-11 and (8) Is the claim under Ex. P-31 not enforceable except as maintenance claim exigible out of the zamindari properties?

51. (1) The first question that arises for determination is as to the nature of the estate taken by Chitti Babu under the will of Ananda Gajapathi, Ex. P-6. The appellants contend that the will conferred an absolute estate on Chitti Babu;

whereas the respondents contend that it created an estate in tail and the same being void Chitti Babu got only a life estate, The decision on this issue depends on the construction to be put on the language of the will.

52. The provisions of the will in so far as they are material for this question may now be set out. It is recited in the preamble to the will that it was being made with a view to ""perpetuate succession of my family"". Paragraph 1 of the will is

as follows:

I do hereby appoint Chitti Babu Vijayaramraj and his male issue to be my legal heirs and successor and representative and I do hereby bequeath to the said Chitti Babu Vijayaramaraj all the property moveable and immovable of the

samasthanam as well as my personal property together with all rights, titles, privileges, honours and insignia of the family which I now possess or may hereafter acquire.

In paragraph 4 it is stated that if the testator should beget a son or a daughter he or she should be his legal heir and should be entitled to all the property above described and that the will should be null and void. Paragraphs 5 to 8 may be

set out ''in extenso'':

(5) In the event of the abovesaid Chitti Babu Vijayaramraj predecease me or me surviving dies without being adopted or without issue male or female, Her Highness my mother or my sister whichever of the two may then be living shall

have full power to appoint my successor and if both be living Her Highness my mother alone shall exercise the right and after the demise of both without a successor being appointed by either of them the ruling power shall select a proper

boy to be my heir and successor with the permission of my nyaties. (6) I do hereby require, direct and authorise the above said Chitti Babu Vijayaramaraj and his male issue or any successor that may be appointed in the several ways

provided above, he, his heirs and representatives shall assume my family name of Pushavathi and style himself Meerja Raja Raja Vijayaramraj Manya Sultan Bahadur of Vizianagram and shall be entitled to all the rights, titles, privileges,

honours and insignia of the family as set forth in para (7) whoever may be in possession of the estate under the several abovesaid contingencies, he or she shall make proper and liberal allowances to all the other members of the family

regard being had to their status, the pocket money not less than six thousand rupees a month in the case of Her Highness my mother and three thousand rupees a month in the case of my sister and after the demise of her Highness my

mother six thousand rupees to my sister. (8) I hereby desire, wish and direct that no part of the estate should be alienated by mortgage or otherwise or dismembered for any purpose whatever and it is further desired that sufficient

accumulation of funds would. be made and set apart to meet the Government Peishkush so that the whole estate may remain intact for ever and without being alienated even for the Government dues provided this accumulation shall not

be prejudicial to the payment of the sums of moneys directed to be given under paras 2 and 7.

Now the contention of the respondent is that the operative words of the bequest in the will occur in paragraph 1 where the testator appoints Chitti Babu and his male issue to be his legal heir, successor and representative; that these

words have a technical meaning importing an estate in tail male; that estates in tail are unknown to Hindu law; that it was not competent to the testator to create by will such an estate and it would be void. If this contention is accepted the

result would be that the first taker Chitti Babu would be entitled to a life estate and the rest of the dispositions would fail resulting in intestacy.

53. In support of this position reliance is placed on the decisions in ''16 Cal 383 (PC) (A)'' and The Madura Hindu Permanent Fund, Limited, though its Secretary Vs. Kamakshi Ammal and Another, ''. In '' 16 Cal 383 (PC) (A)'' the

testator granted a life estate to his daughter and the remainder to two half brothers and to the ""heir or heirs male of their or either of their body."" It was held by the Privy Council that the legacy in favour of the half brothers and the male

heir of their body formed a single bequest which was to take effect on the termination of the life estate and that it was an estate in tail and void under the ''Tagore Case'' (-- ''Juttendra Mohan V. Ganendra Mohan'', Ind App Sup Vol p. 47

(PC) (Q) ). The following observations are particularly relied on by the respondents as directly applicable to the present will.

To whom then is the conveyance to be made? None is directed except to the brothers in equal moieties and to the heir or heirs male of their or either of their bodies or in simpler words to the brothers and their heirs male respectively in

equal shares on failure of which to the sons of the daughter. Their Lordships cannot see where the absolute gift of the property to the brothers comes in. It is given, not to them, but to them and their heirs male. Why should the words

heirs male"" be introduced at all if an estate descendible to heirs general has previously been given?

It is argued on the same reasoning that the bequest is not to Chitti Babu absolutely but to Chitti Babu and his male issue and that those words create an estate in tail. In ''AIR 1826 Mad 492 (2) (C)'' the bequest was in favour of ""Pichu

Aiyar and his male heirs"". A Bench of this Court consisting of Devadoss and Waller, JJ., held that what was granted was an estate in tail male and that it was void on the principle of the decision in ''Ind App Sup Vol p. 47 (PC) (Q)''.

54. The appellants do not dispute the position that if the estate created under Ex. P-6, was an estate in tail it would be void as repugnant to Hindu Law. That is settled under the decisions in ''Ind App Sup Vol p. 47 (PC) (Q)'', --

''Tarakeshwar v. Shoshi Shikareswar'', 9 Cal 952 (PC) (R) & ''16 Cal 383 (P C) (A)''. Nor is it disputed that a bequest of A and his issue will in England be construed as creating an estate in tail. But what is contended is that these

words have not acquired a technical meaning under the Indian Law, and that they must be construed in their ordinary and natural meaning and not in the light of artificial rules of construction developed under the English Law.

55. It cannot be doubted that the rules relied on by the respondents have been evolved under conditions peculiar to England. The estate tail is under the English Law an estate of inheritance. It had its origin in feudal times when landlords

made gift of lands to their followers and dependents to be held by them and heirs of their body. Such grants were construed by Judges as conferring on the donees an estate ''in fee simple'' conditional on their haying issue. When the issue

was born, the condition was satisfied and the donees became absolute owners of the properties with a right to alienate them. The estate was accordingly called ""Fee Simple Conditional"". Land lords complained that by this construction

they were deprived of their right of reversion an-d accordingly the statute ''De Donis Condition- alibus'' was passed prohibiting the alienation by the donees. As a result of the operation of this statute the estate in Fee Simple Conditional

came to be known as estates in tail. Writing on this statute, Blacks ton a observes:

Upon the construction of this Act of Parliament the Judges determined that the donee had no longer a conditional fee simple which became absolute and at his own disposal the instant any issue was born; but they divided the estate into

two parts leaving in the donee a new kind of particular estate which they denominated a fee tail, and vesting in the donor the ultimate fee simple of the land expectant on the failure of the issue; which expectant estate is what we now call a

reversion.

Thus estates in tail are purely the product of feudalistic England and are altogether unknown to Hindu Law.

56. Under the law in England an estate in tail can be created by a deed only by using appropriate words such as ""to A and heirs of his body"" in which case it is called an estate in tail general; or ""To A and the heirs male of his body"" or

To A arid heirs female of his body"" in which case the estate was termed estate in tail special. It was held that in the absence of these words no estates in tail could be created. This however applied only to deeds. With reference to

dispositions made by wills the Courts of Chancery adopted a more benignant construction. If the words of the testator clearly showed that he intended to create an estate heritable by his descendants it was held that an estate in tail was

created notwithstanding defects or imperfections of the words used. This was based on the doctrine expressed in the Latin maxim ""Ut res magis valeat quam pereat"" (It is better for a thing to have effect than to be made void). Thus a

bequest to ""A and his descendants"" was held to create an estate in tail, and bequest to ""A and his descendants male or female"" estates in tail special.

57. But however liberal the construction might be, it was necessary that there should be both words of inheritance and procreation; that is to say being an estate of inheritance it was necessary that there should be words signifying that

successive generations of descendants are to take as heirs. Therefore a bequest to A and his children was held not to create estate in tail because though there were words of procreation there were no words of inheritance. Consequently

in a bequest to ""A and his children"" the word ''children'' was construed as a word of purchase and not of limitation. Vide --''Byng v. Byng'', (1862) 10 HLC 171 (S). Between the two classes of cases aforesaid came a third category and

that is what we are concerned with in this case. If the bequest is in favour of ""A and his issues"" what is the nature of the estate that is created? If ''Issue is construed as meaning ''Children'' then there can be no estate of inheritance and no

estate in tail but adopting the same beneficent rule of construction the Courts held that ''issue'' meant ''descendants'' and that the estate created was, therefore, one in tail. Vide -- ''Reddy v. Fitzgerald'', (1857) 6 HLC 823 (T) where Lord

Cranworth observed:

The word issue when it is used in a will is ''Prima facie'' a word of limitation; that is to say a gift to A, B and his issue gives him an estate in tail; it is the same as a gift to him and the heirs of his body.

In -- ''Pelham Clinton v. New Castle (Duke)'', (1902) 1 Ch 34 (U) Romer L. J. ob served as follows:

In his limitations the testator uses the word ''issue'' which is a word of well-known legal import and one peculiarly apt and proper to create an estate in tail.

In -- ''Re Sim Coe Vowler-simcoe v. Vowler'', (1913) 1 Ch 552 (V), Swinfen Eady J. states the law as follows:

It is now firmly established that in devises of real estate the issue is ''prima facie'' a word of limitation and equivalent to ''heirs of the body.''

58. Thus the rule came to be established in England that a bequest to ""A and his issue"" must be construed as a bequest to ""A and the heirs of his body"" that the estate created was an estate in tail. The entire foundation for the argument of

the respondents rests on the application of this rule to the construction of Indian Wills. They contend that adopting this rule it must be held that the bequest to Chitti Babu an'' his male issue is in law a bequest to Chitti Babu and the heirs

male of his body that it is an estate in tail and therefore void. The question is whether on this rule of construction it must be held that Ex. P. 6 created an estate in tail.

59. I agree with the learned Attorney General that the construction which the English Courts have put upon bequest ""to A and his issue"" as creating an estate in tail is not one that should be adopted in the construction of Wills of Hindu

Testators.

60. In England as already stated estates in tail could in strictness be created only by the use of the words ""heirs of the body"". An exception was however, made where the disposition was made by will and in construing bequests to A and

his issues as creating an estate in tail the Courts acted on the principles that words in a will should be liberally construed; that the will should be so construed as to render the dispositions effective and not inoperative and that, the words of

the testator might be construed as intended to create an estate known to law, such as an estate in tail, notwithstanding defects of expression. It would be a strange application of this principle to construe the words of a Hindu testator

strictly according to the technical meaning put upon them by English Courts, to hold that the testator meant to create an estate unknown to Hindu Law and to him and thereby destroy the entire fabric of the dispositions under the will.

61. Dealing particularly with the meaning of the word ''issue'' as including descendants the observations of Turner J. in -- ''Wynch, ex parte, (1853) 5 D. M. & G 188 (W)'', clearly show that this rule is deeply rooted in the feudal notions

and conditions peculiar to England and that it is not one capable of universal application and assent. He observed :

The rule of law which construes ''issue'' as ''prima facie'' a word of limitation rests as I apprehend upon one or other of these foundations; it is either derived from the old law, which upon feudal principles was much directed against the

successors to real estates taking otherwise than by descent or it rests upon the ground that the word issue taken ''per se'' includes all the issues, and that the best mode of effectuating the intention in favour of all the issues is to give an

estate tail to the parent which in the course of devolution would embrace them all. Surely a rule resting upon such foundations can have no application to personal estate. The feudal principle does not reach to the subject matter.

It was accordingly held that this rule had no application to bequests of personalty and its operation was confined to bequests of realty. Vide also observations of Parker J. In --''Coulden, Coulden v. Coulden'', (1908) 1 Ch 320 (x).

62. Even in relation to realty Courts have shown considerable reluctance in following the rule of construction that issue meant descendants so as to create an estate in tail. In --''Livesay V. Walpole'', (1875) 23 WR 825 (Y), Malins V. G.

observed as follows :

Every part of the, will must be considered in order to gather the intention of the testator. The inconvenience of construing the word issue to mean descendants generally is so great that the Court lays hold of any circumstance to cut it

down. It is clear that when the testator speaks of issue of her issue he meant by the word ''issue'' children only or issue of the first generation. He has therefore, said in effect. ""Be it understood by the word ''issue'' I mean children only,

issue of the first generation only."" In -- ''Morgan v. Thomas'', (1882) 9 QBD 643 (Z), the bequest was in favour of ""L for life and after his decease to his lawful issue and their heirs for ever if any"". In holding that issue in the will meant

only children Jessel M.R. observed as follows : ""First, what does ''Issue'' mean? ''Issue'' has a popular meaning being often used in the sense of ''Children and a legal or technical meaning, being used in the sense of ''descendants'' and the

question is in which sense it is used by the testator. It is a term of flexible meaning.

63. Thus, it will be seen that the extended meaning given to the word issue in Courts in England is based upon conditions peculiar to that country; it does not apply to bequests of personalty that even as regards realty it is liable to be

displaced by the expression of a contrary intention to be gathered from the will as a whole. Is this rule to be adopted as part of the law of this country for construing the wills of Hindu testators? The following observations of Wilson J. in -

- ''Ram Lal v. Kania Lal'', 12 Cal 663 (Z1), which were quoted with approval by Lord Macnaghten in -- ''Bagabati v. Kali Charan'', 38 Cal 468 (PC) (Z2), may usefully be quoted in this context : ""It is no new doctrine that rules

established in English Courts for construing English documents are not as such applicable to transactions between natives of this country. Rules of construction are rules designed to assist in ascertaining intention, and the applicability of

many such rules depends upon the habits of thought and modes of expression prevalent amongst those to whose language they are applied. English rules of construction have grown up side by side with a very special law of property and

a very artificial system of conveyancing, and the success of those rules in giving effect to the real intention of those whose language they are used to interpret depends not more upon their original fitness for that, purpose man upon the fact

that English documents of a formal kind are ordinarily framed with a knowledge of the very rules of construction which are afterwards applied to them. It is a very serious thing to use such rules in interpreting the instruments of Hindus,

who view most transactions, from a different point, think differently and speak differently, from Englishmen, and who have never heard of the case of Indian Wills."" In -- ''Vehkata Narasimha Appa Rao v. Parthasarathy'', 37 Mad 199

(PC) (Z3), referring to certain rules of construction peculiar to English conditions Lord Moneton observed :

Such rules are purely an English product based on English necessities and English habits of thought and there would be no justification in taking them as our guide in the case of Indian Wills.

64. If by a long course of judicial construction words of bequest such as ""to A and his issues"" had come to acquire in this country a technical meaning as importing an estate in tail then different considerations might arise. But that,

however, is not the case. No authority has been cited before us wherein ''issue'' has been construed as a word of limitation creating an estate in tail. In the--''Tagore case, Ind App Sup Vol. p. 47 (PC) ,Q)'', the testator had executed a

will in English form and adopted English technical terms and expressly created estates in tail.

65. In--''16 Cal 383 (PC) (A)'', Lord Hobhouse observed:

The will is composed in English; the draftsman seems to have had a smattering of English real property law; he clearly knew there was a difference between a son and an heir male of the body; and apparently he had English dispositions

of property in his eye. This seems to be an attempt of a kind not infrequent among Bengal Zamindars of late years to introduce English estates tail into Hindu property which the law will not allow.

66. In The Madura Hindu Permanent Fund, Limited, though its Secretary Vs. Kamakshi Ammal and Another, '', the words of bequest which were in Tamil were translated as ""to Pichu Iyer and his heirs male"" and no question as to the

meaning of the word ''issue'' arose. In -- ''9 Cal 952 (PC) (R)'', the bequest was in favour of three nephews and their descendants in the male line; and that there being words both of procreation & inheritance the bequest was held to

create an estate in tail male. If one can draw on the illustration to Section 97 of the Succession Act, Act 39 of 1925, a bequest ""to A and his issue"" confers an absolute interest on A. It is true that this section does not apply in terms to the

wills of Hindus but it clearly shows that the rule of construction adopted in England is not such as to compel universal acceptance.

67. It was argued by the respondents that when words which have acquired a technical sense are found in a will they must be interpreted in that sense unless there is a clear indication to the contrary. Reliance is placed on the following

observations of Lord Davey in -- ''Lalit Mohan Singh v. Chukkun Lal'', 24 Cal 834 (PC) (Z4):

Technical words or words of known legal import must have their legal effect even though the testator uses inconsistent words unless those inconsistent words are of such a nature as to make it perfectly clear that the testators did not

mean to use the technical terms in their proper sense. See -- Gallini v. Gallini'', (1833) 5 B & Ad 621 (Z5).

But the answer to this argument is that the word ''issue'' has not acquired any technical sense in India and therefore this principle has no application. It was also argued that as the will was written in English there is a presumption that the

word ''issue'' was used in the sense which had been put upon it in ''English Courts and that it should accordingly be construed as importing an estate in tail. That, however, is not the correct position. The duty of the Court is to ascertain the

intention of the testator and for that purpose regard must be had not only to the language in which the testator has written the will but also to the notions and habits of thought usual in the community to which he belongs. In -- ''Mac Gibbon

v. Abbott'', (1885) 10 AC 653 (Z6), the Court had to construe the will of a testator domiciled in the lower Canada where the French Law was in force. On a question as to whether English law or French Law should be considered in the

construction of the will which was in English the judicial Committee observed ;

The question whether John could exclude anyone of his children from a share must in their Lordships'' opinion be decided according to the law of the lower Canada and not according to English Law.

68. It would be lamentable if their Lordships in a case arising in lower Canada and to be determined by the law of that country should feel themselves bound by a course of English decisions which have been swept away by the legislature

as fraught with inconvenience and mischief. In -- ''Reynolds v. Kortnight'', (1854) 52 ER 164 (Z7), it was held that the will of an Englishman written in Spanish should be construed as an English will & that the Spanish language was to be

looked into to ascertain the equivalent expression in English. These principles are clearly applicable to the present case. The result then is that there are no grounds for importing in the construction of Ex. P-6 the technical rule of

construction established in England that a bequest ""to A and his issue"" created an estate in tail. The will must, therefore, be construed without any reference to any such rule and in accordance with the rules followed in the construction of

all wills. As observed by Mukherjee, J. in the decision in -- Gnanambal Ammal Vs. T. Raju Ayyar and Others, the

cardinal maxim to be observed by Courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole.

In -- ''(1857) 6 HLC 823 (T)'', Lord Wenslaydale observed as follows :

The first duty of the Court expounding the will is to ascertain what is the meaning of the word used by the testator. That which he has written is to be construed by every part being taken into consideration according to its grammatical

construction and the ordinary acceptation of the words used.

Construing the will in the light of the principles aforesaid it does appear that the intention of the testator was to confer on Chitti Babu an absolute estate. It is clear beyond doubt that Ananda Gajapathi intended to create an estate of

inheritance. It is recited in the preamble to Ex. P-6 that it was being executed with a view to perpetuate the succession of his family. Paragraph 5 contains detailed provisions for constitution of successor and heir to him in future.

Paragraph 6 provides that the family name and insignia should be assumed by Chitti Babu and his male issue or any successor. The contention on either side involves the assumption that what is created is a heritable estate; while according

to the appellants it is an absolute estate, according to the respondents it is an estate in tail and in either case it is an estate of inheritance. The real point for consideration, therefore, is whether on the language of Ex. P-6 an estate in tail has

been created. Paragraph 1 contains the operative words of disposition. It is in two parts. In the first part the testator appoints Chitti Babu and his male issue to be his legal heir, successor or representative. According to the respondents

this is the controlling provision in the will and it creates an estate in tail. In the second part the testator bequeathes all his properties moveable and Immovable to Chitti Babu. The appellants contend that these are the effective words of

bequest and that they confer an absolute estate. The respondents argue that even if the words in the second part of para 1 go beyond the first part they cannot control the effect of the latter and that the second part must, therefore, be

read subject to the first part. Reliance is placed on the decision in -- ''Doe v. Fyldes'', (1778) 2 Cow 833 (Z9). In that case there was a bequest in favour of ""Allice Scolefield and the heirs of her body lawfully to be begotten for ever"". In

the later clauses the words referred merely to heirs of Alice Scolefleld. It was held by Lord Mansfield that the clear words of disposition contained in the first clause were not cut down or modified by the later clauses.

69. It must be conceded that the words of appointment in the first part are not the best suited to make a bequest. It is true that where there are no other words of disposition, words similar to those in part. (1) of para 1 have been held to

be sufficient to constitute a bequest but we have in Ex. P-6 immediately following clear words of bequest. The words of appointment would seem properly to refer to the dignity, title and insignia of the family which are mentioned in the

same paragraph. It is not without significance that the testator referred to Chitti Babu and his male issue once again only in para 6 which provides for the assumption of the family name, dignity and insignia. It would be more natural to

construe the second part of para 1 as containing the operative words of the disposition.

A powerful reason for holding that the testator did not intend to create an estate in tail male is that the provisions of the will clearly show that he was not averse to the succession of female heirs. Thus in para 1 he refers to his not having

female issue and in para 4 he states that if he should beget a son or a daughter he or she should be his legal heir. In para 5 again the power of appointing a successor is conferred on his mother and sister only if Chitti Babu should die

without issue male or female. In para 7 it is provided that the allowances mentioned in the will should be paid by whoever was in possession of the estate whether it be ""he or she"". In the face of these indications it is impossible to argue

that the intention of the testator was to create an estate in tail male. It was also urged that the restriction on the power of alienation imposed on the holders of the estate for all times is an indication that an estate in tail was intended but if

that was the intention there was no need to impose that restriction as no holder of the estate in tail has power to alienate the property so as to bind the successors. It is more consistent with the grant of an absolute estate and is nothing

more than the expression of a pious wish not unusual among testators that their properties should remain intact in the hands of their successors.

70. Another material consideration which militates against the contention put forward by the respondents is that the testator appears to have used the word issue in the sense of children and not descendants. If male issue in para 1 of the

will does not mean male descendants, then there can be no estate in tail and the foundation on which the argument of the respondents rests will be gone. In para 1 the testator says that he has no issue, male or female and in para 4 that if

he should have a son or a daughter, he or she shall be his heir. In this context issue must mean only child and not descendants because the daughter''s daughter will not be an heir. Again in para 5, the appointment of a successor is

provided if Chitti Babu is to die without issue male or female. Here also the word must signify only children. Thus there is ample indication in the will that the testator used the word issue in the limited sense of the children of the first

generation. If that is so, then there can be no question of estate in tail. I am aware that there is authority in England for the position that when there is a bequest ""to A and his children"" and there are no children in existence at the time of the

will, A would take an estate in tail. Vide -- ''(1862) 10 HLC 171 (S)'', and if this rule is to be applied the bequest to Chitti Babu and his male issue must be held to confer an estate in tail on him, no children of Chitti Babu having been in

existence at that time.

But this rule like the one construing a bequest ""to A and his issue"" as conferring an estate in tail is wholly feudal in its origin and it was further based on a view of the law which has since been discarded in England and which was never a

part of the law in this land. Where a gift or bequest was made to A simpliciter, it was the law in England that the donee or legatee took only a life estate; and it was accordingly held that where there is a bequest to A and his children and

there were no children in existence as A could take only a life estate it should be construed as an estate in tail. This artificial rule was not adopted when the bequest related to personalty. After the Wills Act of 1837 the law in England is

that a bequest to A simpliciter would confer an absolute estate. I should accordingly hold that the issue in para 1 must only mean children and that it does not create an estate in tail.

71. This construction, it may be contended, gives no effect to the words ""male issue"" in Ex. P-6, but it must be remembered that the sons are the first among the heirs under Hindu Law and that there is nothing unnatural in a Hindu testator

prominently mentioning the sons, in the will while intending to confer an absolute estate. This construction will bring the dispositions in Ex. P-6 in accord with the notions of a Hindu testator and as observed in -- ''Mahomed Shumsool v.

Shewak Ram'', 2 Ind App 7 (PC) (Z10).

In construing the will of a Hindu it is not improper to take into consideration what are known to be the ordinary notions and wishes of Hindus with respect to the devolution of property.

72. Vide also the observations of the Privy Council in -- ''Radha Prasad Mullick v. Rani Moni Dassi'', 35 Cal 896 (PC) (Z11). The testator Ananda Gajapathi could not have known about the estate in tail. On the other hand fie would

have been familiar with the estates known to Hindu law and it would be proper to construe Ex. P-6 as conferring on Chitti Babu an estate known to him though in imperfect language rather than as creating an estate unknown to him in

language which is as imperfect and this construction has further this in its favour that it would render the dispositions in the will operative and not ineffective, which would be the result of upholding the contentions of the respondents. ""Ut

res magis valeat quam pereat"". It is better for a thing to have effect than to be made void. In the result I hold that on a true construction of Ex. P-6 it confers an absolute estate on Chitti Babu.

73. 2. If Chitti Babu got absolute title under Ex. P-6 was that title displaced by his adoption?

74. Ananda Gajapathi died on 23rd May 1897 and the will took effect on that date. On 18th December 1897 Alak Rajeswari adopted Chitti Babu to her husband Vijayam Gajapathi and from that moment his status was that of an

adopted son. Between the two dates 23-5-1897 and 18-12-1897 the title to the zamindari was indisputably vested in Chitti Babu as absolute owner. The contention of the respondents is that when Chitti Babu was adopted on 18-12-

1897 the adoption related back to the death of Vijayaram Gajapathi, that on 23-5-1897 when Ananda Gajapathi died, Chitti Babu was in the contemplation of law a coparcener with him; that the will in consequence became inoperative

and that the title to the zamindari was thereafter only as adopted son & not as legatee. There is no dispute that adoption relates back to the date of the death of the adoptive father. It was observed by the Privy Council in -- ''Pratap Singh

Shiv Singh v. Agar Singhji Rai Singhji'', AIR 1918 PC 192 (212) ;

Now it is an explicit principle of Hindu law that an adopted son becomes for all purposes, son of his father and that his rights unless curtailed by express texts are in every respect the same as those of a natural born son...Again it is to be

remembered that an adopted son is the continuator of his adoptive father''s line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be

made there is no status in the continuity of the line.

75. To what extent this doctrine of relation back confers rights on an adopted son to recover possession of the properties belonging to the estate of his adoptive father is now well settled by authoritative pronouncements, (i) Where the

estate has devolved by inheritance on a person who would not have been entitled to succeed to it had the adopted son been alive on that date, this doctrine has been applied so as to divest the estate which had vested in such a person

and revest it in the adopted son. Vide -- ''Sri Virada Pratapa Raghunada Deo v. Sri Brojo Kishore'', 1 Mad 69 (PC) (Z13); -- AIR 1933 155 (Privy Council) and -- AIR 1943 196 (Privy Council) . (ii) Where the estate had been

alienated before the date of the adoption by a limited owner such as a widow or mother who was then ''in titulo'', the adopted son would be entitled to challenge the alienation if it was not one which was binding on the estate and such

right could be exercised immediately on adoption. Vide -- Vaidyanatha Sastri Vs. Savithri Ammal and Others, . (iii) Where the alienation was made prior to the adoption by a person ''in titulo'' who was competent to dispose of the

property absolutely, such alienation cannot be questioned by the adopted son on the strength of the principle of relation back. In -- Vatti Kuti Veeranna by adoptive mother and guardian Achamma Vs. Katuri Sayamma alias Chittamma

and Others, , there was a joint family consisting of father and son. The son died issueless leaving behind a widow. Then the father as the sole surviving co-parcener executed a deed of settlement conveying properties to his daughters. The

son''s widow then made an adoption and the adopted son contended that the settlement was invalid on the theory of relation back. It was held by Odgers and Venkatasubba Rao, JJ., that the alienation could not be questioned and that

the adopted son could only take what remained un alienated. The following passage from Mayne''s Hindu Law was quoted with approval.

It would be intolerable that he should be prevented from dealing with his own on account of a contingency which may never happen. When the contingency has happened, it would be most inequitable that the purchaser should be

deprived of rights which he obtained from one who at the time was perfectly competent to grant them.

(See Mayne''s Hindu Law, Eleventh Edition pages 264 and 265, para 207). (iv) The same result follows when the disposition is by will and not by deed. The adopted son would take the estate subject only to the rights created under the

Will. Vide -- ''Udhao Sambh v. Bhaskar Jaikrishna'', AIR 1946 Nag 203 (Z17). The position is thus summed up by AIR 1927 139 (Privy Council)

When a disposition is made ''inter vivos'' by one who has full power over property under which a portion of that property is carried away it is clear that no rights of a son who is subsequently adopted can affect that portion which is

disposed of. The same is true when the disposition is by will and the adoption is subsequently made by a widow who has been given power to adopt. For, the will speaks as at the death of the testator, and the property is carried away

before the adoption takes place.

76. On these principles it would follow that the bequests made by Ananda Gajapathi under Ex. P. 6 would remain untouched by the adoption which took place subsequently.

77. But it is argued that these principles would apply only when the alienee or legatee was a person different from the adopted son, that, when the alienation or bequest is in favour of the very person who is adopted then the estate could

not be said to have been carried away and when the adopted son also happens to be alienee or legatee the doctrine of relation back will apply to annul the title which he"" got under the deed or the will. But this contention ignores the

principle on which the decisions aforesaid rest. The normal rule is that the adopted son takes such properties belonging to his adoptive father as are in existence at the date of the adoption. There are two exceptions to this rule (1) Where

''the person in possession became entitled to it as heir of the adoptive father and by reason of the adoption the adopted son displaces the title of that person as heir and (2) when there has been an alienation by an intermediate limited

owner and such alienation is not binding on the estate. But where the estate has been alienated by a full owner there is nothing to which the adopted son can succeed on the date of the adoption. As observed in -- Vatti Kuti Veeranna by

adoptive mother and guardian Achamma Vs. Katuri Sayamma alias Chittamma and Others, '', the theory of relation back has no application to such a case. If Alak Rajeswari had adopted some person other than Chitti Babu that adopted

son could not have divested the title of Chitti Babu under Ex. P. 6. Chitti Babu himself was not entitled to dispute the legacies granted under Ex. P. 6 in favour of Alak Rajeswari and the Maharani o� Rewa. It is therefore difficult to see

on what principle the title which Chitti Babu had acquired under Ex. P. 6 could be said, to. have been annulled by adoption.

78. Mr. N. Rajagopala Iyengar, the learned Advocate for Rani Vidyavathi Devi relied on the decisions in -- Sukhdevdoss Ramprasad Vs. Mt. Choti Bai and Others, , and -- Erram Reddy Chenchu Krishnamma Vs. Maram Reddy

Lakshminarayana and Another, . In -- Sukhdevdoss Ramprasad Vs. Mt. Choti Bai and Others, , Govardhan Doss Motha had bequeathed his properties absolutely to his widow. She then adopted a son and one of the questions

considered was whether the adoption had the effect of divesting the estate which had vested in her under the will of her husband. Phillips Offg. C. J. took the view that it did have that effect. He referred to the principle that when a widow

made an adoption her estate was divested and referred to the following observations of Lord Kingsdown in -- ''Mt. Bhoobun Mayee Debia v. Ram Kishore Achari Chowdhry'', 10 Moo Ind App 279 (PC) (Z18):

If Bhowanee Kishore had died unmarried his mother Chandra Bullee Debia would have been his heir, and the question of adoption would have stood on quite different grounds. By exercising the power of adoption she would have

divested no estate but her own, and this would have brought the case within the ordinary rule.

79. He accordingly held that the same principle must apply when the widow was in possession of her husband''s properties though it be under his will and though the interest conferred on her was absolute estate. With great respect this

proceeds on a misconception of the principle on which divestiture of estates on adoption rests. The result of the adoption is to constitute the adopted son as heir to the adoptive father as on the date of his death and that legal fiction

enables him to divest all estates which had vested by inheritance in persons who would not have been entitled to inherit if he had in fact been in existence on that date. This rule has no application to estates which had not devolved by

inheritance. Even the adopting widow would not be divested of her separate and sridhanam properties by reason of the adoption. Even an aurasa son would have no claim to them and the adopted son could not be put in a better position.

The properties which the widow got under the will of her husband were her absolute properties and her title to them is not as heir of her husband but as legatee under the will. That was the view taken by Reilly J. in the same case. He

observed

it has been recognised clearly by the Privy Council in AIR 1927 139 (Privy Council) '' that when by his will the husband has disposed of part of his property, that disposition cannot be affected by the adoption of a son after his death and

a similar legal effect must follow in my opinion, from the disposition by will of the whole of his property, which in that case cannot be affected by a subsequent adoption. So far as I can see, there is no legal principle on which, an absolute

estate created by the husband''s will in favour of his widow or any one else can be divested by a subsequent adoption, unless we can treat the adoption as so relating back to the life-time of the husband as to destroy in respect of

ancestral property his power of disposition by will, a view which the opinion expressed by the Privy Council in AIR 1927 139 (Privy Council) '' precludes us from taking."" -

80. I am in entire agreement with this view. In Erram Reddy Chenchu Krishnamma Vs. Maram Reddy Lakshminarayana and Another, '' the testator bequeathed his properties absolutely to his widow and by the same will conferred on

her a power to adopt. She made an adoption and the adopted son claimed the properties which had been bequeathed to her, by virtue of his title as adopted son. It was held by Phillips and Srinivasa Ayyangar JJ. that the adoption

divested the widow of the properties which she had got under the will.

81. While Phillips J. was of the opinion that the observations in AIR 1927 139 (Privy Council) '' would not affect the right of an adopted son to divest the properties in the hands of the adopting mother whether she became entitled to

them by inheritance or will, Srinivasa Ayyangar J. took the view that the properties which had been disposed of by will would stand on a different footing from the properties which had been inherited. He observed

There can be no doubt whatever that on the principle of the thing it cannot be that a person who is the full and absolute owner at the moment of his death cannot validly dispose of his property by will merely because he has given

permission to his widow to make an adoption. Their Lordships, in view of the theory of the adoption of a son by the widow to her deceased husband relating back to the time of death of the person to whom the adoption is made being

only a legal fiction, and of the fact that such adoption is only a subsequent legal act, have in clear and indubitable terms laid it down that in such cases the will must take effect"".

But both the learned Judges agreed that on a construction of the particular will before them the widow was granted an estate defeasible on adoption, or as was put by them, it was a provisional bequest to the widow which was to cease

on adoption. Both the decisions relied on by the respondents relate to bequests in favour of the very widow who was to make the adoption and the reasoning of Phillips J. proceeds on the special position occupied by the legatee as the

adopting mother. Even if this view is correct -- and in my opinion it is not -- it can have no application where the bequest is in favour of a person other than the adopting widow. I have no hesitation, therefore, in rejecting the contention of

the respondent that the adoption of Chitti Babu on 18-12-1897 put an end to his rights as legatee under Ex. P, 6.

82. 3. The next question to be determined is whether the absolute title which Chitti Babu got under Ex. P. 6 was cut down by the operation of the Madras Impartible Estates Act, (Act II of 1904). For a proper appreciation of the

provisions of this Act it is necessary to state the facts which led up to it. In Madras, as in other parts of India impartible estates had their origin either in family custom or in Crown Grant. The family custom originated in days. when the

Zamindars enjoyed the status of a. raja or principality. There can be only one-sovereign for a kingdom and there can be only one holder of a Zamindari. Then a change came over the political conditions and the principalities became

reduced to the position of estates But even though all the vestings of sovereignty had vanished, the custom of one single heir succeeding to the estate persisted and thus we get the impartible estates which descend by custom of the family,

to a single heir. Apart from, custom impartible estates were also created by Crown Grants, such as for example, Palayams which were grants made to feudatories on military tenure; and the jagirs and saranjans which were service grants.

In the case of all these grants their impartibility resulted from the very nature and purpose of the grant. Apart from family custom or Crown grants there could be no creation of impartible estates in modern times. Vide -- AIR 1925 49

(Privy Council) .

83. The law relating to impartible estates as originally understood and declared by Courts in Madras was that they were subject to all the incidents of partible property with such exceptions as flowed from their character of impassibility.

The law was thus stated by Turner C. J. and Muthuswami Ayyar J., in a leading case which has been repeatedly approved by the Privy Council, --''Naraganti Achamma Garu v. Venkatachalapathi''. 4 Mad 250 266 (Z20), where

property is held in coparcenary by a joint Hindu family there are ordinarily three rights vested in coparceners -- the right of joint enjoyment, the right to call for partition and the right to survivorship. Where impartible property is the subject

of such ownership, the right of joint enjoyment and the right of partition as the right of an undivided coparcener are from the nature of the property incapable of existence. But there being nothing in the nature of the property inconsistent

with the right of survivorship it may be presumed that right remains and

But where, from the nature of the property, possession is left with one coparcener, the others are not divested of co-ownership. Their necessary exclusion from possession imposes on the co-owner in possession two obligations to his

coparceners in virtue of their co-ownership -- the obligation to provide them with maintenance and the obligation to preserve the corpus of the estate

In accordance with this view it was the settled law in Madras that alienations by holders of zamindaris would not be binding on their successors, unless it was supported by necessity and that there could be no devise of the estate by will.

84. Then came ''10 All 272 (PC) (L)'', in which the Privy Council held that the restrictions on the power of a manager to alienate joint family property was incidental to the right of partition possessed by the other coparceners and that

where there was no fight to partition there could '' be no right to question the alienation and that accordingly the holder of an impartible zamindari had absolute powers of alienation. Shortly after this judgment was delivered, the precise

effect of this decision on the law as understood in this Presidency came up for consideration in the case reported in -- ''Beresford v. Ramasubba'', 13 Mad 197 (Z21). There a mining lease which was granted by the Kangundi Zamindar

was challenged on behalf of his successor on the ground that it was not for a purpose binding on the estate. Parker J. upheld this contention and set aside the transaction. While an appeal against that decision was pending the judgment in

''10 All 272 (PC) (L)'' was reported. In allowing the appeal on the strength of this decision Muthuswami Ayyar, J. observed as follows: ""Thus the principle which'' has hitherto guided the Courts in this Presidency as supported by the

observations of the Judicial Committee has been this -- that when an estate is shown to be impartible by custom the general law is superseded only to the extent of excluding the right of partition and of joint enjoyment and the Mitakshara

law governs the disposing power of the coparcener in sole possession over the corpus of the estate. But this view of the law was overruled by the Privy Council in ''10 All 272 (PC) (L)''.

85. Wilkinson, J. observed:

It has been invariably held that acts and alienations by the holder of an impartible zamindari made to enure beyond his lifetime will, if otherwise than ''bona fide'', and if prejudicial to the family, be set aside. The grounds on which the

decisions have proceeded are that the zamindar, though absolute owner"" has only a life interest, that he is the manager of the family for the time being; that his coparceners have rights of survivorship to the possession of the whole estate;

and that the law of the Mitakshara by which each son has by birth a property in the ancestral estate, though it cannot apply so as to enable them to insist on partition, at least applies so far as to enable them to claim maintenance. But we

are bound by the decisions of the Privy Council, and must hold that the alienation complained of in this suit must be upheld.

In ''22 Mad 383 (PC) (G)'' the Judicial Committee followed the decision of ''10 All 272 (PC) (L)'', to its logical conclusion and held that the holder of the Zamindari had the right to dispose of it by will. These decisions introduced what

was considered to be a revolution in the law relating to impartible estates as understood and followed in this Presidency & they were received with such profound dissatisfaction that the local Legislature had to intervene. The first

legislation on the subject was the Madras Impartible Estates Act, Act II of 1902. In the statement of objects and reasons for the proposed enactment it was stated that the i decisions of the Privy Council were in opposition to the views

held in Madras and that they would result in the dismemberment of the ancient estates of this Presidency. The Act was put in force in the first instance for a period of one year and the reason for limiting its life Would appear to be that

some time would be required for preparing a comprehensive list of impartible estates which should be brought under the Act. There was a schedule of impartible estates annexed to the Act and with reference to this the statement of

objects and reasons stated as follows:

The Bill, therefore declares that the estates entered in the schedule thereto are impartible. The schedule includes only those permanently settled estates which have been in existence from before the date of the Permanent Settlement

Regulation (Regulation XXV of 1802) and have been declared by judicial decisions to be so and have, as a fact descended without partition since that date,

86. Along with this must be read Section 2 of that Act which is in these terms:

The estates included in the schedule hereto annexed shall be deemed to be impartible. In the case of any estate not included in the schedule, if it be hereafter judicially declared that such estate is impartible, such estate shall thereupon be

deemed to have been included in the schedule.

87. It is therefore clear that the list of impartible estates given in the schedule was not complete. It was liable to be modified in accordance with judicial decisions. Thus the preparation of the final list of the impartible estates and the

enactment of a permanent statute relating thereto were deferred pending determination as to what estates should be included in the Act. Evidently the Government expected to complete this enquiry within a year but they were not able to

do so and therefore the Impartible Estates Act II of 1903 was passed re-enacting the provisions of Act II of 1902 for a further period ending 31st March, 1004. One feature introduced by this Act was that Section 2 provided that

estates which had been held to be partible by judicial decisions should be deleted out of the schedule. Then came the Act II of 1904 with which we are concerned. Section 3 of this Act is as follows:

The estates included in the schedule shall be deemed to be impartible estates.

There is nothing in this Act corresponding to the provisions of Section 2 of the Act II of 1902 and Act II of 1903 providing for the inclusion or exclusion of estates in accordance with judicial decisions. The Government having applied its

mind to the question as to whether particular estates should be declared impartible or not, their decision embodied in the schedule to the Act was intended to be final and conclusive, subject only to alteration by Legislature. One remark in

the statement of objects and reasons is particularly worthy of mention. It is that ""holders of the estates included in the schedule are Hindus."" This was in answer to a criticism of the provisions of Act II of 1902 that if there was an alienation

in favour of Mahomedans or Christians the effect of the enactment would be to impress the character of the impartibility on the estate in their hands. Vide the article in ''12 Mad LJ 322 ''(Journal)'' where it was observed:

that the effect of this is, that even where an estate is owned by a Mohammedan or Christian, his action is to be regulated by the same law of alienations, that govern the Hindu manager of an undivided family.

88. It is obvious that the Government had made enquiries and satisfied itself that the estates included in the schedule to Act II of 1904 were impartible and the inclusion of estates therein is a legislative determination that they are

impartible.

89. The provisions of the Act so far as they are relevant for the purpose of these appeals may now be set out. The object of the legislation is stated to be

to declare that certain estates are impartible and that proprietors of such estates cannot exercise unrestricted powers of alienation in respect thereof.

The preamble states that

it is expedient to amend the law in regard to the impartibility and alienability of certain estates.

Impartible Estate is defined as follows :

Section 2(2): --

Impartible Estate"" means ''an estate descendible to a single heir and subject to the other incidents of impartible estates in Southern India.

Next follows the definition of proprietor of an impartible estate as meaning:

a person entitled to possession thereof as single heir under the special custom of the family or locality in which the estate as situated or if there be no such family or local custom under the general custom regulating the succession to

impartible estates in Southern India.

90. Section 3 declares that the estate included in the schedule shall be deemed to be Impartible Estates.

91. Section 4(i) is as follows:

The proprietor of an impartible estate shall be incapable of alienating or binding by his debts, such estate or any part thereof beyond his own lifetime unless the alienation shall be made or the debt incurred, under circumstances, which

would entitle the managing member of a joint Hindu family, not being the father or grand father of the other coparceners, to make an alienation of the joint property, or incur a debt, binding on the shares of the other coparceners

independently of their consent.

Section 7 is in these terms;

This Act shall not affect alienations made or debts incurred before the coming into force of this Act and shall cease to apply to estates or parts of estates which may hereafter be lawfully alienated otherwise than by temporary transfer.

92. In the schedule to the Impartible Estates Act, Vizianagram Estate is specifically included.

93. In support of the position that the title of Chitti Babu to the zamindari under Ex. P. 6 was not altered or affected by the provisions of the Madras Impartible Estates Act the following contentions were urged on behalf of the appellants.

94. (1) It is argued that Ex. P. 6 took effect on 23rd May, 1897 when Ananda Gajapathi died, and that on that date Chitti Babu became entitled to the zamindari as absolute owner and that as he was a stranger to the family of the

testator the estate lost its character of impartibility in his hands and that in consequence the Impartible Estates Act which first came into operation in 1902, and, as finally enacted, in 1904, did not apply to it. It stands to reason that an

impartible estate should retain that character only so long, as it is held by the family and that when once it goes out of the family it should lose its character as impartible estate. If impartibility is an incident arising by reason of family custom

it is not one which is capable of running with the estate and be attached to it. In -- A.L.V.R.S.T. Veerappa Chettiar and Another Vs. Thangachami Naicker and Others, , the following observations occur:

Apart from cases where an estate is impartible by reason of the tenure of grant on which it is held, it is clear that where a stranger becomes by purchase or otherwise the owner of an impartible estate, the estate is no longer impartible in

his hands. This view is supported by Section 7 of the Madras Impartible Estates Act (Act II of 1904) which provides that the provisions of the Act do not apply where the estate is transferred to a stranger.

95. It is true that the alienation in question in that case took place after the Madras Impartible Estates Act had come into force but --as indicated by the observations quoted above -- Section 7 is only a legislative recognition of a principle

which by its very nature must apply to all alienations of impartible estates. In this view it must be held that when Chitti Babu became entitled to the zamindari under the will Ex. P-6 on 23rd May 1897, the estate became thenceforward

freed in his hands from the incidents of impartibility.

96. But what follows from this? It is not sufficient merely to establish that the estate had ceased to be impartible before the time of the legislation. The question has still to be answered how the rights of Chitti Babu over the zamindari under

Ex. P-6 have been dealt with under the Act. There is to begin with the controlling fact that the Zamindari of Vizianagaram has been specifically included in the schedule to the Act and taken along with the expressed intention of the statute

to declare ""certain estates"" as impartible and inalienable the effect is precisely as if the Act declared that the Vizianagaram Estate among others was impartible and inalienable. Mr. Setalvad argued that the inclusion of the estate in the

schedule was not intended to be a final determination that it was impartible estate and that it was open to the appellants to establish that in fact it had ceased to be an impartible estate and that if that is established the Act would not apply.

It will be remembered that while the Acts of 1902 and 1903 contained provisions for inclusion or exclusion of estates on the basis of judicial determination there is no similar provision in the Act of 1904 and as already mentioned the

course of legislation on the subject shows that the question whether a particular zamindari was an impartible estate or not engaged the special attention of the Government and that the Act of 1904 represents the final decision of the

legislature on the point. The matter is placed beyond doubt by Section 3 which declares that the estates included in the schedule shall be deemed to be impartible estates. Therefore it is really not relevant to consider whether the estate

ceased to be an impartible estate before the date of the Legislation. It is recognised by Section 3 that the estate might not in fact be impartible on the date of legislation but as a matter of policy, it is treated as if it were impartible. That

clearly is the significance of the word ""deemed"". In -- AIR 1930 54 (Privy Council) , the Privy Council observed as follows :

Now, when a person is ""deemed to be"" something the only meaning possible is that whereas he is not in reality that something, the Act of Parliament requires him to be treated as if he were. In --''Queen v. Norfolk County Council'',

(1891) 60 LJ QB 379 (Z24), Cave, J., observed when a thing is to be ""deemed"" something else, it is to be treated as that something else with the attendant consequence but it is not that something else. It must, therefore, be held that

notwithstanding that the zamindari had ceased to be impartible on 23rd May 1897, it became once again impressed with the character of impartiality by force of legislation. The result is the same as if there was a resumption of title of

Chitti. Babu on the date of the enactment and regrant to him of the estate in terms of the statute.

97. 2. It is next contended that on a proper construction of Section 7 the rights conferred on Chitti Babu would stand outside the Act unaffected by it. That Section provides that the Act shall not affect alienations made before the Act and

it shall cease to apply to estates or parts of estates which might thereafter be lawfully alienated. It is argued that the object of the Section is to protect the alienations which had been made and that, therefore, Chitti Babu who obtained title

to the estate under the will on 23rd May 1897 was not affected by the operation of the statute. It will be relevant to refer to the corresponding provisions in the Acts of 1902 and 1903 relating to alienations. Section 4 of Act II of 1902

runs as follows:

This Act shall not apply to (A) portions of estates included in the said schedule which have, before the coming into force of this Act been permanently transferred from the registered proprietors either by Court-sale or by voluntary

alienation.

98. This Section, therefore, protected only alienations which related to portions of the estate. Where the whole estate had been alienated the inclusion of the estate in the schedule brought it under the operation of the Act with the result

that the estate itself would in the hands of the alienee be held by legislative declaration as impartible. That this was the result intended by the legislature would be clear from the following statement of the object of the Section :

The intention of the Section is that if only a portion of the estate is alienated, the Act shall not apply to such portion, which shall not be impressed with the condition of impartibility so long as the corpus remains. Of course, if the whole

corpus is transferred this Act does apply. I do not suppose that it matters much as to who the actual proprietors are.

99. The object of the legislation, as was rightly emphasised by the learned Advocate General was not so much to benefit the families of zamindars as to preserve the estates and where the estates had been transferred the policy of the

Legislature was to make them impartible in the hands of the alienees. Coming, to the present Act this purpose is carried but by declaring that the alienations themselves will not be affected whereas with reference ''to future alienations the

same section provides that the Act shall not apply to them. The difference in language is deliberate and significant. In the case of alienations made before the Act the alienations themselves will stand but the estates will be subject to the

Act; whereas in the case of alienations subsequent to the Act, the Act will not apply, with reference to the properties alienated. On the language of the Section the alienations in favour of Chitti Babu would not be affected and his title as

owner will be recognised but the property in his hands will be subject to the provisions of this Act. Considerable reliance was placed on behalf of the appellants on the following passage occurring in Mayne''s Hindu Law at page 847

(11th edn.,) on the effect of alienation of impartible estates prior to coming into operation of the Act:

But, of course, the Madras Impartible Estates Act does not apply to an estate or part of it, even though it be a scheduled estate, which estate or part of it had been validly alienated prior to the Act (Section 7). Nor can Section 4 of the

Act restrict the powers of an owner, who, at the commencement of the Act, came into . possession of an impartible estate not as an heir, but under a valid gift or devise.

The authority cited in support of the above passages in the footnote is the decision of the Privy Council in -- AIR 1939 95 (Privy Council) ''. But carefully examined, that decision does not lend any support to these propositions. The facts

were that Kotilinga the zamindar of Urkad was anxious to exclude his eldest son from succession and so executed a deed of settlement reserving a life estate for himself with remainder in favour of his child with whom his wife was

''enciente'' at that time, if it should be born male and to his wife absolutely in certain contingencies. This deed was executed a few days prior to the passing of the Impartible Estates Act and with the evident idea of avoiding its operation. A

male child named Meenakshisundaram was born and became entitled to the zamindari under the deed of settlement. In 1906 another son called Ulagalum Peru-mal was born to a third wife. Kotilinga died in 1907 and

Meenakshisundaram who succeeded him died in 1929 leaving behind a widow as his heir. The contest was between this widow and Ulagalum Perumal, that is, between the widow and the step brother of Meenakshisundaram.

The Privy Council held affirming the decision of this Court that Meenakshisundaram took the zamindari as self-acquired property under the deed of settlement and that, therefore, his widow and not his step brother would be entitled to

succeed to the estate as heir. There was no decision that the Impartible Estates Act did not apply to the zamindari in the hands of Meenakshisundaram. Whether that Act applied or not, the result would have been the same because it is

well settled that even in respect of the impartible estates where they constitute self-acquisitions in the hands of the holder they will descend to his heirs and that it is only if the estates are joint family properties in the hands of the holder that

they would devolve by rules of survivorship. Vide the decisions in -- ''Baijnath Prasad Singh v. Tej Bali Singh'', AIR 1921 PC 62 (Z25); --''Konnammal'' y. Annadana'', AIR 1928 PC 68 (Z26); -- AIR 1934 157 (Privy Council) and --

AIR 1932 216 (Privy Council) . The ground of the decision is thus stated by the Privy Council : ""The son of a Hindu governed by the Mitakshara law who succeeds to an ancestral impartible estate in Madras under a vested interest in a

deed of settlement executed by his father while his elder brother was alive and before the coming into force of the Madras Impartible Estates Act takes the estate as self-acquired property. On his death intestate, his widow would

therefore succeed to the estate in preference to his half brother."" The Board declined to express any opinion on the nature of the estate in the hands of the alienee and observed:

''''They recognise however that as between the grantee and his sons questions may arise upon which these considerations or some of them may have importance.

In -- AIR 1946 103 (Privy Council) , the proprietor of a ''raj'' executed a will in which he recited that after his death his adopted son should be the owner of the entire estate. On a question as to whether by reason of this disposition, the

adopted son took the property freed from the incidents of impartibility the Privy Council held that the character of the estate was not changed. Dealing with the decision in -- AIR 1939 95 (Privy Council) , Sir John Beaumont observed as

follows :

The learned Judges referred to several cases and relied particularly on a recent decision of their Lordships'' Board, -- ''Ulagalum Perumal''s case (H)''. In that case the owner of an ancestral impartible estate in the Madras Presidency

governed by the Mitakshara law, wishing to exclude his eldest son from succession executed a deed settling the estate after his own death on his second son. The Board held that the settlement was within the power of the settlor, and that

the second son took the property as his self-acquired property and that it passed on his death under the ordinary Hindu Law of Succession. In that case the settlor had deliberately broken the line of succession and settled ''the estate on

somebody outside that line, and that is the ''ratio decidendi.

I am of opinion that the statement of the law in Mayne''s Hindu Law at page 847 (11th edition) is not supported by anything in the decision of the Privy Council and cannot be accepted as correct.

100. (3) It is next contended on behalf of the appellants that even if the Vizianagaram zamindari is held to be governed by the provisions of the Madras Impartible Estates Act the alienation under Ex. P-11 cannot be held to be invalid u/s

4 as that Section hits only alienations made by proprietors of estates and Chitti Babu was not a proprietor of the estate within the meaning of the Act. Chitti Babu, it is argued, was not a person entitled to possession of the impartible

estate as single heir under the special custom of the family and that though he was a relation, he was not a member of the family of the zamindars as legally understood; that he was entitled to possession only under Ex. P. 6 and that Ex. P.

11 was not hit by Section 4.

This argument sounds plausible but is not convincing and if accepted, would render the Act wholly nugatory with reference to all estates in the possession of alienees. It has been already mentioned that the intention of the Legislature in

passing the Madras Impartible Estates Act was to preserve the ancient estates from being dismembered and with that object the statute imposed on them the character of impartibility and inalienability. Some of the estates continued to

remain in the family of the zamindars and of their proprietors it can rightly be said that they were entitled to possession as single heir under special custom. But there were others which had passed out of the family by alienation and the

policy of the law was to bring those estates as well within the operation of the legislation and that was achieved by the declaration contained in Section 3 of the Act.

The definition of impartible estate occurring in Section 2 (2) must be read in the light of Section 3. So read the position is that all the estates included in the schedule should be deemed to be estates descendible to a single heir and subject

to other incidents of impartible estates in Southern India. Now turning to the definition of proprietor of an impartible estate in Section 2(3) it consists of two parts : (a) Where a person is entitled to possession as single hair under the

custom of the family or locality, and (b) in the absence of such custom under the general custom regulating succession of impartible estates in Southern India.

While the language of the first part will be appropriate with reference to estates continued to be held in the family of the zamindars, the second part would appear to have been included for the purpose of taking in the estates in the

possession of alienees which are deemed to be impartible u/s 3 and which must be deemed u/s 2 (2) to be subject to the incidents of impartible estates in Southern India. To construe the section narrowly as contended for by the

appellants would lead to the anomalous position that while estates in the hands of the alienees would be brought under the purview of the Act by Section 3 the owners of the estates, themselves would be outside its operation and that in

the result, the Legislature achieved nothing by including them in the schedule. Section 2 (3) should be reasonably interpreted so as to include the proprietors of all the estates which are declared impartible under the Act. To adopt any

other construction would be to render the provisions of the Act infructuous and Courts should be averse to adopt a construction which would render the statute useless and inoperative especially when it is founded on principles of public

policy. Vide -- ''Ramachandra Suru v. Venkatalakshmi Narayana'', AIR 1919 Mad 429 (Z30) and --'' R.D.K. Venkatalingama Nayanim Bahadur Varu, Rajah of Kalahasti Vs. Rao Muni Venkatadri Rao Garu, .

101. Another circumstance which strongly militates against the argument of the appellant is that in the Acts of 1902 and 1903 there was no definition of proprietor, while there was restriction imposed on the powers of alienation of the

impartible estates mentioned in the schedule, Vizianagaram being one of them. It is clear that under the Acts of 1902 and 1903 Chitti Babu would have had no power to alienate the estate except for proper purposes and no reason has

been suggested why he should have been freed from these restrictions under the Act of 1904.

102. After all the word ''proprietor'' has in Madras Legislation been used as synonymous with, zamindar. In Section 3 of the Madras Permanent Settlement Regulation 25 of 1802 it is provided that Sanads ""shall be granted on the part of

the British Government to all persona being or constituted to be zamindars or proprietors of land and each zamindar or proprietor of land shall execute and deliver to the Collector of the district a corresponding Kabuliath"". Ex. P-8 is the

extract from the Government register relating to permanently settled estates. The third column is as follows : Name of the original zamindar or proprietor: The name of Chitti Babu is entered under this column. No distinction seems to have

been intended to be made by the Legislature between the zamindar and proprietor and it must, therefore, be held that Chitti Babu was a proprietor of an impartible estate within the definition of Section 2(3) and that his rights under Ex. P.

6 were superseded by his title as impartible estate holder under the Madras Impartible Estates Act.

103. (4) Are the allowances fixed under Exs. P. 11, P. 13 and P. 31 in lieu of maintenance payable to the parties? It will be remembered that C. S. No. 494 of 1949 was instituted by the Rajah of Vizianagaram for reduction of the

amounts payable to Dr. Vijayananda under Exs. P. 11 and P. 31 and of the amount payable to Rani Lalitha Kumari under Ex. P. 13 on the ground that they are maintenance allowances liable to be reduced u/s 14 of the Act in view of the

altered circumstances. It is in defence of this claim that the appellants plead that Ex. P. 11 was executed by Chitti Babu as absolute owner under Ex. P. 6 and that the alienation is unaffected by the Madras Impartible Estates Act. This

ground failing, it is alternatively contended by them that even if Chitti Babu''s title is superseded by his title as proprietor under the Madras Impartible Estates Act the suit should nevertheless fail because the amounts payable under Exs. P.

11, P. 13 and P. 31 are not maintenance allowances and therefore are not liable for reduction u/s 14 of the Act.

Two of the deeds, Exs. P. 11 and P. 31 were the subject matter of the suit, C. S. No. 133 of 1946 in the Court of the Civil Judge, Benares and F. A. No. 31 of 1948 on the file of the High Court, Allahabad. Against the decision of the

Allahabad High Court the Rajah of Vizianagaram had preferred an appeal to the Supreme Court, C. A. No. 107 of 1951 and the judgment therein was pronounced while the appeals in this Court were pending. Some of the points which

were in controversy before Mr. Rajagopalan J. are now settled by that judgment.

104. (i) Ex. P. 11. This was a deed of trust executed by Chitti Babu on 28-10-1912, vesting his properties in a trustee and the scheme of this deed broadly was that the trustee was to manage all the properties, discharge the debts and

other obligations of the settlor in due course of management and transfer the estate to Alak Narayanan on his attaining the age of 21. The deed also provided for the payment of various allowances from out of the properties. The trustee

and the transferees from the trustees were to take the estate subject to these burdens. Paragraph 14 of the deed of trust runs as follows;

The second son of the settlor shall on attaining majority be entitled during his lifetime to be paid a monthly allowance of Rs. 5,000 and to a provision for a suitable house.

The second son referred to in this paragraph is Dr. Vijayanand Gajapathi. It must be mentioned that the properties comprised in Ex. P-11 included those which Chitti Babu, had got under Ex. P. 6 and those which he himself had

subsequently acquired. The properties which he got under Ex. P, 6 consisted of (1) the zamindari, (2) those which had been acquired by. Vijiyaram Gajapathi and (3) those which Ananda Gajapathi himself had purchased; While the

impartible Estates Act affected the title of Chitti Babu to the zamindari, it left his rights over the other two classes of properties got under Ex. P. 6 untouched. Ananda Gajapathi was entitled to deal with those properties absolutely and

Chitti Babu got them under Ex. P. 6 as his self-acquisitions.

It was argued for the respondents that on the principle of the decision in -- ''Nagalingam Pillai v. Ramachandra Thevar'', 24 Mad 429 (Z32), Chitti Babu would take the properties as joint Hindu family properties and the trust deed would

be inoperative even with reference to them. But that decision will apply only where the bequest is in favour of a person who would but for the will take the properties as heir with the incidents of joint family property. Chitti Babu was a

stranger at the time the will took effect and even when he was adopted he became a brother of the testator and the estate would not on either view be ancestral properties in his hands. Vide -- Janakiram Chatty and Others Vs. G.C.

Nagamony Mudaliar, . These properties therefore belonged to him absolutely and the title of the trustee and of Alak Narayanan to these properties and the other self-acquisitions of Chitti Babu rests solely on Ex. P. 11.

105. One of the points raised by the appellants is that Alak Narayanan having got the properties other than the zamindari under Ex. p. 11 is estopped from disputing the obligations which had been declared by that deed and charged on

these properties.

106. Dealing with this contention the Supreme Court in its judgment in C. A. No. 107 of 1951 observed as follows: ""Accordingly, Alak Narayanan having taken the benefits of the deed after he attained majority was liable to pay the

monthly allowance to the respondent as provided for in the deed out of the properties comprised therein, and that liability having devolved on Alak Narainan''s death on the appellant the latter would be liable to pay the allowance out of

those properties."" But the Supreme Court has also held that by reason of the release deed Ex. P. 36 dated 9-10-1944, Dr. Vijayananda Gajapathi is precluded from recovering the allowance under Ex. P. 11 from the properties other

than the zamindari. The question that still remains to be decided, therefore is whether Dr. Vijayanand Gajapathi in entitled to recover the allowance under Ex. P. 11 from the zamindari property and whether it is liable to be reduced u/s 14

of the Act.

107. It was argued for the appellants that the sum of Rs. 5,000 per mensem directed to be paid under Ex. P. 11 could not be regarded as a maintenance allowance because Chitti Babu was under no obligation to maintain Dr. Vijayanand

after he became major as the zamindari was in any event his self-acquisition, his title being derived under Ex. P. 6. Reliance is placed on the decision of this Court in -- M. Subbayya Thevar, Zamindar of Uttumalai Vs. Sivagnana

Marudappa Pandian, . There it was held that the zamindar of Uthumalai who succeeded to the estate as the Atma Bandhu of the last owner took it as self-acquired property and the state was not liable in his hands for the, maintenance of

his adult son. But it cannot be said that the law on the subject was so clear or uniform as to warrant the assumption that the allowance was fixed with a full consciousness that there was no obligation to maintain.

But apart from this the question is not whether Chitti Babu could have been compelled to maintain Dr. Vijayanand after he became major but whether in fact he intended to make a provision for his maintenance. Moral obligations to

maintain often transcend the limits of legal obligations and the absence of a legal obligation cannot be taken to be conclusive that what was granted was not maintenance allowance. That must be determined on a review of all the relevant

facts and circumstances of the case.

108. Turning to Ex. P. 11 paragraph 13 provides for an allowance being paid to the settlor and that is expressly mentioned as maintenance. The appellants rely on the fact that in paragraph 14 relating to Dr. Vijayanand there is no such

express mention and that the amount is merely referred to as allowance. Paragraph 15 provides for maintenance allowance for sons to be born to the settlor. Paragraph 16 provides for payment of allowances to the Maharani as per the

directions of Ananda Gajapathi in his will, Ex. P. 6. In its setting, the allowance of Rs. 5,000 to Dr. Vijayanand is more consistent with its being maintenance allowance than a payment unrelated to it. If what the son to be born is to get is

maintenance there is no reason to regard the allowance to the existing son in a different light.. There is no other provision for maintenance, in favour of Dr. Vijayanand.

109. There is a long course of conduct on the part of Dr. Vijayanand treating it as a maintenance allowance. In Ex. P. 62 he refers to the payments as maintenance allowance. In Ex. P. 34 which is a copy of the petition sent by Dr.

Vijayanand to the Court of Wards in December 1935 he referred to this sum of Rs. 5,000 fixed under Ex. P. 11 and the further sum of Rs. 5,000 fixed under Ex. P. 31 as maintenance allowances. He says:

The Maharaja also has fixed maintenance allowance at the rate of Rs. 10,000 per month to the claimant as younger son of the late zamindar Maharaja.

110. A question arose whether Dr. Vijayanand was liable to pay Income Tax on the amounts received by him under Ex. P-11 & P-31. The department sought to tax the allowances as ""other income"" and Dr. Vijayanand resisted It on the

ground that the amounts were received by him as a member of a Hindu undivided family, that they represented maintenance allowances and that they should be exempted from taxation u/s 14 (1) of the Income Tax Act. The matter came

on reference before the High Court of Allahabad in -- In Re: Income Tax Reference of Vijaya Ananda Gajapatiraj Bahadur and in accepting the contention of the assessee the Court observed as follows : ""The next question is whether the

amount of Rs. 10,000 a month which the assessee is in receipt of, can be considered to be income received by him as a member of the undivided family to which he belongs. As already mentioned it the sum be considered to be in the

nature of a gift pure and simple by the assessee''s father and brother it cannot be characterised as income received by a member of a Hindu undivided family as such. The Commissioner of Income Tax has not addressed himself to this

aspect of the case though it was contemplated in the second question formulated by the assessee. It seems to us that if the assessee was, by custom applicable to the Vizianagaram estate, entitled to be maintained with the revenues of the

estate and if the allowance fixed for him by his father and brother is in satisfaction of his right to be so maintained he should be considered to have received it as a member of a Hindu undivided family.

and again:

''Prima facie'' and in the absence of proof to the contrary, the younger son of the late Maharaja as the assessee is, was of right entitled to be maintained duty of the income of the impartible property. The assessee is not receiving any

other allowance for maintenance.

In the plaint in C. S. No. 133 of 1946 in the Court of the Civil Judge, Benares, Dr. Vijayanand claimed arrears due to him under Exs. P. 11 and P. 31 as arrears of maintenance. Vide paragraph 3 and paragraph 20(a).

111. It was argued for the appellants that it was not material as to what Dr. Vijayanand thought the nature of the allowance was or how he described it, so long as no plea of estoppel was raised based on such conduct or declaration; and

that it was obligatory on the part of the Court to decide what the true character of the payment was and grant relief on the basis of that decision. That undoubtedly is so. But the question is what is the nature of the allowance that is

provided for under Ex, P-11; is it for the purpose of maintenance or is it a gift pure and simple? The mere use of the word allowance does not decide the matter. It is a neutral expression which will acquire particularity only when the

purpose of the allowance is ascertained. In such a case the construction put on the deed by the parties thereto would be a relevant piece of evidence. The law was thus stated by -- ''Lord Wensleydale in Waterpark v. Fennell"", (1859) 7

HLC 649 (Z36):

These deeds (that is, ancient deeds) are to be construed by the evidence of the manner in which the subject has been possessed or used .........Lord Hardwicke, with reference to the construction of ancient grants and deeds-says that

there is no better way of construing them than by usage, and ''contemporanea expositio'' is the best way to go by. That '' was in the case of -- ''Attorney-General v. Parker''. (1747) 26 ER 1132 (Z37) Lord St. Leonards follows in --

''Attorney-General v. Drummond'', (1842) 1 Dr. & War 353 (Z38) and says one of the most settled rules of law, is that you may resort to contemporaneous usage for the meaning of a deed.

Tell me what you have done under such a deed and I will tell you what the deed means.

112. On a consideration of all the circumstances I am of opinion that the allowance of Rs. 5,000 mentioned In Ex. P. 11, is one in lieu of maintenance and is liable to be reduced u/s 14 of the Madras Impartible Estates Act. In this view it

is unnecessary to go into the question how, if the amount payable under Ex. P. 11 it is not in lieu of maintenance but is a gift or even a debt, it could be enforced against the zamindari in the hands of the plaintiff.

113. Neither an alienation made nor a debt incurred by a holder will be binding oil the zamindari in the hands of his successor, unless it be for a binding purpose. If the obligation is related to maintenance then it will be valid u/s 4 but it will

also be liable to be reduced u/s 14. Otherwise it will not be binding on the successor to any extent and must be wholly disregarded though it would be binding in its entirety on the properties other than the zamindari as decided by the

Supreme Court. But as the point has not been argued it is unnecessary to discuss it further.

114. It will be convenient at this stage to deal with questions Nos. 5 and 6 which relate to enforceability of the claim under Ex. P-11. It is the appellants'' contention that Alak Narayanan having taken the properties of Chitti Babu other

than the zamindari under Ex. P-11 cannot repudiate the obligations laid on him by the very deed. That is the subject matter of question No. 5:

Was Alak Narayanan estopped from disputing the rights of the defendants under Ex. P-11 and under Ex. P-13 by reason of his having elected to take under Ex. P-11?

115. It has already been mentioned that the correctness of this position has been accepted by the Supreme Court with reference to Ex. P-11 and this point must, therefore, be found in favour of the appellants.

116. The contention of the learned Attorney General for the respondents is that the very rule of estoppel which was held to preclude Alak Narayanan and the plaintiff from repudiating the obligations under Ex. P-11 while taking the

benefits thereunder would also preclude Dr. Vijayanand from claiming benefits under Ex. P. 11 after repudiating successfully the validity of the dispositions under Ex. P. 11. In reply the learned Attorney General contends that Dr.

Vijayanand would be entitled to rely on Ex. P. 11 except to the extent that it was modified by Ex. P. 36; that both these deeds must be read together and that as his right to recover maintenance from the zamindari as provided under Ex.

P. 11 had not been taken away under Ex. P. 36 he would be entitled to enforce Ex. P. 11 to that extent. This contention is opposed to the fundamental principles on which the doctrine of election rests. When a deed confers on a person

certain benefits burdened with certain obligations, that person has the right of elect whether he would take the benefits under that deed or not. If he does elect to take the benefits under the deed, he must also bear the burdens created

thereby. The law does not permit him to retain the benefits and to repudiate the burden. These principles are well established.

117. A classic statement of the law on the subject is to be found in the well-known observations of Lord Hedesdale in (1805) 2 Sch & Lef 444 (Ir) (N)''.

118. Then comes the contention of the respondents which is set out in question No. 6 : ""Is Dr. Vijayanand estoppad from claiming under Ex. P. 11 by reason of the release deed Ex. P. 36."" The facts on which this plea is founded are that

after the estate was taken over by the Court of Wards in 1935 Dr. Vijayanand sent a petition to them Ex. P. 34 disputing the validity of the dispositions made in Ex. P. 11 in so far as they related to properties other than the zamindari. He

claimed therein that they were joint family properties in which he had a share; that the trust was inoperative with reference to them and that he was in consequence entitled to delivery of his hall share. Sir D''Arcy Reilly a retired Judge of

this Court was deputed by the Court of Wards to investigate the claim and expert legal opinion was taken and eventually the matter was settled by compromise under which Dr. Vijayanand Gajapathi was paid a sum of Rs. 10,00,000 in

full satisfaction of his claims and he executed a release deed on, 9th October 1944, Ex. P. 36.

By that deed Dr. Vijayanand relinquished and surrendered

all his claims, and those of his minor sons now living and that may be born to him hereafter and of all other members of his family.

(a) To any part of or share in what was at any time the joint family property moveable or Immovable of the Releasor and his father the said Chitti Babu and his brother the said Alak Narayanan Gagajathiraj, or after the death of the said

Chitti Babu the joint family property by survivorship of the releasor and his brother, the said Alak Narayanan Gajapathi Raj, except such as is now in the releasor''s possession.

(b) To any part of or share in the separate property, moveable or Immovable of the releasor''s father the said Chitti Babu, of which the said Chitti Babu did not dispose by will except such as is now in the Releasor''s possession and

(c) To any other property now under the superintendence or in the possession of the Court of Wards on behalf of the Releasees or of the said Rani Vidyavathi Devi, but without prejudice to any right of succession to the impartible

zamindaris of Vizianagram and Kasipuram or either of them, which may ultimately accrue to the releasor or to his issue, and also without prejudice to the releasor''s right to maintenance out of the income of the said zamindari or either of

them & further without prejudice to any claim which the releasor may have against the separate property of his late brother, the said Alak Narain Gajapathi.

The scope of this release deed was considered by the Supreme Court in its decision in C. A. No. 107 of 1951. The Court observed:

The document read as a whole clearly discloses that the parties had in view four distinct and specific categories of properties, namely (1) the zamindari (2) the joint family properties of Chitti Babu and his sons, ''(3) separate property of

Chitti Babu not disposed of by his will, and (4) the separate property of Alak Narayanan. The scheme of the settlement appears to have been that the respondent who was claiming a share in items 2 and 3 should receive Rs. 10,00,000

and release all his claim in respect of those properties subject to reservations specifically mentioned which covered his right to recover maintenance out of them (1) and ""any claim the releasor may have"" against item 4, that is to say, the

parties intended that the respondent should thereafter have no manner of claim against items 2 and 3.

119. The release, therefore, had the effect of extinguishing all the rights of the appellant, Dr. Vijayanand over all the properties comprised in Ex. P. 11 except the zamindari, and with reference to the zamindari the deed reserved his right of

succession and the right to maintenance out of the same. The respondents contend that the right of maintenance out of the zamindari so reserved was one to which he was entitled under the law and that was liable to be reduced u/s 14

whereas Dr. Vijayanand contends that he is entitled to maintenance under Ex. P. 11 and not merely under the general law. Whether Dr. Vijayanand was entitled to claim maintenance under Ex. P. 11 or under the General Law had not to

be decided by the Supreme Court because it was contended on behalf of the Raja of Vizianagram that even apart from Ex. P. 11 a sum of Rs. 5000 claimed by Dr. Vijayanand in the Benares suit would be a reasonable amount u/s 14 of

the Act in the then circumstances of the family. The question that was thus left over undecided by the Supreme Court has now to be determined.

The general rule is that a person cannot accept and reject the same instrument and this is the foundation of the law of election, on which Courts of Equity particularly have grounded a variety of decisions in cases both of deeds and of

wills though principally in cases of wills, because deeds being generally matter of contract, the contract is not to be interpreted otherwise than as the consideration which is expressed requires.

120. In -- ''(1873) LR 7 HL 854 (O)'', Lord Cairns observed:

By the well settled doctrine which is termed in, the Scotch law the doctrine of approbate and reprobate and in our Courts more commonly the doctrine of election, where a deed or will professes to make a general disposition of property

for the benefit of a per son named in it, such a person cannot accept the benefit under the instrument with out at the same time conforming to all its provisions and renouncing every right inconsistent with them.

With particular reference to deeds, the principle is that the settlor must be taken to intend that all the obligations mentioned in the deed form the consideration for the benefit; that the deed with its benefits and burdens constitute one

indivisible transaction which must stand or fall in its entirety. The following observations of Lord Selborne in -- ''(1873) LR 8 Ch 578 (P)'', are particularly relevant to the facts of the case :

In all of them the party who claiming by a title not bound by the deeds, thereby withdrew part of the consideration for which the deeds were intended to be made, was held obliged to give up by way of compensation what he or she was

entitled to under the deeds.

Applying this principle, when Chitti Babu imposed by Ex. P-11 an obligation on Alak Narayanan to pay Rs. 5,000 to Dr. Vijayanand every month, the consideration therefore was the transfer by him of all his properties, non-zamindari as

well as zamindari. According to Dr. Vijayanand, Chitti Babu had no right to transfer absolutely the non-zamindari properties to Alak Narayanan. In that situation his rights under the law are clear. He might elect to disaffirm the whole deed

and recover his share of non-zamindari properties in which case he would not be entitled to recover the allowance as provided under Ex. P-11 or he might elect to affirm the deed and claim the allowance as provided therein, in which

case ha would be precluded from questioning the rights of Chitti Babu to transfer the non-zamindari properties to Alak Narayanan. But what he cannot do under the law is to affirm the deed so far as the obligation to pay maintenance to

him is concerned and disaffirm it so far as the transfer of properties to Alak Narayanan is concerned. He cannot be permitted to take both under the deed and claim adversely to it. He having successfully assailed the validity of the

disposition with reference to non-zamindari properties under Ex. P-11 and having received substantial benefit under Ex. P. 36 has elected irrevocably to disaffirm the deed and he cannot thereafter lay any claim on the basis of that very

deed. That deed is to him ''non-est''. It must, therefore, be held that Dr. Vijayanand is entitled to maintenance under the law and not in terms of Ex. P-11.

121. Ex. P-31: It will be remembered that after Alak Narayanan had obtained possession of the zamindari he executed Ex. P-31 on 11th February 1928 granting a further payment of Rs. 5,000 per mensem for Dr. Vljayanaod Gajapathi.

The plaintiff claims that this is also a maintenance allowance and is liable to be reduced u/s 14 of the Act. That it is a maintenance claim does not admit of serious dispute. It was so described by Dr. Vijayanand in Exs. P-62 and P-34. In

Ex. P-29 Alak Narayanan stated:

the money allowance of Rs. 5,000 which I am bound to pay you under the trust deed is inadequate to support your rank and dignity as the younger brother of the Rajah of Vizianagaram.

122. There are not sufficient grounds for holding that the allowance fixed under Ex. P-31 is not of the same character as that fixed under Ex. P-11.

123. But the question whether the allowance is in lieu of maintenance or not is relevant only when it is sought to be recovered out of the zamindari. Ex. P-31 does not provide that the payment has to be made out of the zamindari. It

creates only a personal obligation on the part of Alak Narayanan to pay the amount to Dr. Vijayanand and as such it can be enforced only against the separate properties of Alak Narayanan in the hands of the plaintiff and the members of

his family. The rights of the parties under Ex. P-31 were determined by the Supreme Court in its judgment in C. A. 107 of 1951. The Court held that Alak Narayanan was liable under that deed to pay the additional allowance to Dr.

Vijayanand during the latter''s lifetime and that his estate other than the zamindari was liable in the hands of his legal representatives to satisfy that obligation. It was sought to be argued before us that the claim under Ex. P-31 was really in

lieu of maintenance payable out of the zamindari and that, therefore, the amount due thereunder could be reduced u/s 14 and the question No. 8 also

is the claim under Ex. P-31 not enforceable except as maintenance claim exigible out of the zamindari properties

relates to this contention. This is opposed to the decision of the Supreme Court and that Ex. P-31 created only a personal liability and that the zamindari was exempt therefrom and must be overruled.

124. Ex. P. 13: On 18-5-1914 Mr. Robertson who was functioning as a trustee under Ex. P-11 executed a deed providing for the payment of a monthly allowance of Rs. 6000 to Rani Lalitha Kumari Devi out of the properties covered

by Ex. P-11. The question to be determined is is this maintenance allowance liable to be reduced u/s 14 of the Act. There are no good grounds for treating this allowance differently from that of Dr. Vijayanand under Ex. P-11. In Ex. D-2

the Rani refers to the sum of Rs. 6000 as maintenance allowance. In Ex. D-4 she again described it as maintenance allowance, There is also the fact that Chitti Babu was under an undoubted legal obligation to maintain the Rani and the

case for holding that it was to be in lieu of maintenance is even stronger in her case. It must be held that this allowance is also in lieu of maintenance and liable to be reduced u/s 14 in so far as it is sought to be recovered out of the

zamindari.

125. But the payment of the allowance under Ex. P-13 is charged also on the non-zamindari properties settled under Ex. P-11 and different considerations arise with reference to the liability of these properties for this claim. Chitti Babu

was absolutely entitled to all the properties transferred by him under Ex. P-11 excepting the zamindari; he was competent to impose any burden on those properties and any person who took them could take them only subject to that

burden and that was the position of Mr. Fowler and of Mr. Robert-son as trustee under Ex. P-11 and of Alak Narayanan taking the properties under Ex. P-11. There can be no doubt, therefore, that if Ex. P-11 had itself contained the

obligation to pay a monthly allowance of Rs. 6000 to Lalitha Kumari Devi neither Alak Narayanan nor the plaintiff could have repudiated it.

The reasons given by the Supreme Court for holding that Ex. P-11 was binding on Alak Narayanan and the plaintiff could equally be invoked by Rani Lalitha Kumari Devi for holding that they are estopped from disputing their obligation

to her under Ex. P-11. As she has not precluded herself from proceeding against the non-zamindari properties, as Dr. Vijayanand has by Ex. P-36 she is entitled to recover the ''full amount of allowance from those properties.

126. But a special contention Is raised by ''the respondents with reference to the claim under Ex. P. 13 and that is covered by question No. 7 which is ""Is Ex. P-13 not valid as being beyond the powers of the trustee under Ex. P. 11"". It

will be seen that the allowance to Ram"" Lalitha Kumari was not fixed is Ex. P. 11. It was subsequently fixed by Mr. Robert-son as trustee purporting to exercise the powers conferred on him under paragraph 33 of Ex. P-11. The

contention of the respondents* is that under that paragraph the power could be exercised only for the purpose of the preservation of the estate and that fixing of allowance is not an act required for the preservation of the Estate.

127. Paragraph 33 recites that provisions-had to be made for ""due and proper management of these premises"" and that the trustee-is authorised to execute the necessary deeds after obtaining the consent of the persons mentioned therein.

It cannot be doubted that the power of management includes the power to pay off debts and obligations binding on the estate. A maintenance amount payable to a member of the family is an obligation which has to be met by the estate. It

must be remembered that at the time of Ex. P-11 the settlor was under pressure from creditors and in the normal course the estate would have been taken over under the Court of Wards Act. The arrangement under Ex. P-11 appears to

have been intended as a substitute for the management by the Court of Wards.

The properties were vested in the District Collector who would otherwise have taken, charge under the Court of Wards Act. u/s 22 of that Act the Court of Wards has to determine as part of its management what sums should be

allowed for the expenses of the ward and of his family and of his dependents.

It is reasonable to conclude that the intention of the settlor was to clothe the Collector appointed under Ex. P-11 with all powers usual and necessary for the proper management of the Estate by the Court of Wards. It would have been

within the powers of the Collector of the Court of Wards to have fixed the allowance of Rani Lalitha Kumari Devi u/s 22"" of that Act, and the same power must be taken to have been conferred on the trustee under paragraph 33.

The members of the family have understood Ex. P. 13 as a proper exercise of the power under paragraph 33 of Ex. P-11. Ex. P-13 recites that the consent of all the persons required under paragraph 33 had been obtained. Chitti Babu

himself was alive on that date and undoubtedly he took a leading part in having the transactions arranged. Alak Narayana far from disputing the validity of Ex. P-13 continued payments as provided therein after he became major and

obtained possession of the-estate. By his conduct he has clearly accepted the deed as within the power of the trustee-The objection that Ex. P. 13 was not within the power of the trustee under Ex. P. 11 was not even taken in the

pleadings and the-explanation for this omission that the parties were under the impression that the obligation was provided in Ex. P-11 is itself an admission that it was recognised by the members-of the family as valid. I am of opinion that

Ex. P. 13 is within the authority conferred on the trustee under Ex. P-11 that it was accepted as proper exercise of that authority by all the members of the family and by Alak Narayanan and that the plaintiff and other members of the

family must be held to be bound by it.

128. To sum up; Chitti Babu got absolute title to the zamindari and other properties under Ex. P. 6 and that title was not displaced by his adoption; his rights under Ex. P. 6, however, were superseded by his title as impartible estate

holder under the Madras Impartible Estates Act; the allowances fixed under Exs. P. 11, P. 13 and P. 31 were in lieu of maintenance and were liable to be reduced u/s 14 of the Impartible Estates Act with reference to the zamindari

property; that Alak Narayanan and his successors having derived, benefits to which they would not have been entitled except under Ex. P. 11, would be estopped from repudiating the rights of Dr. Vijayanand and of Rani Lalitha Kumari

Devi under Exs. P. 11 and P. 13 respectively; that Dr. Vijiyanand having disaffirmed the right of Chitti Babu to transfer the non-zamindari properties under Ex. P. 11 was not entitled to base any claim under Ex. P. 11; that Ex. P. 31

created only a personal obligation not enforceable against the zamindari and that the estate of Alak Narayanan was liable therefor; and that Rani Lalitha Kumari Devi is entitled to recover the allowances as per Ex. P. 13 from the non-

zamindari properties conveyed under Ex. P. 11 in full, and from out of the zamindari properties to the extent which may be determined u/s 14 of the Madras Impartible Estates Act.

It remains to consider the effect of the coming into force of the Madras Estates (Abolition and Conversion into Ryotwari) Act 26 of 1948 on the rights of the parties as determined herein. Ex. P. 11 has as such been held to be inoperative

but Dr. Vijayanand is entitled to maintenance out of the zamindari and that will be determined u/s 14 of the Madras Impartible Estates Act. The right to reasonable maintenance as determined under that section will cease on 7-9-1949,

when the zamindari was taken over by the Government but in its place Dr. Vijayanand will be entitled to such portion of the compensation and allotment of lands in patta as will be determined by the Tribunal u/s 45 of Act 26 of 1948.

The amount due, under Ex. P-31 will be payable only out of the separate properties of Alak Narayanan which are the subject-matter of partition in C. S. No. 485 of 1949. The allowance payable to Rani Lalitha Kumari will be payable

out of both the zamindari and non-zamindari properties comprised in Exs. P. 11 and P. 13. But as the zamindari stands abolished from 7-9-1949 and is represented by compensation payable under Act 26 of 1948 it becomes necessary

to apportion the sum of Rs. 6,000 between the compensation amount and between the non-zamindari properties liable for the claim under Exs. P. 11 and P. 13. The apportionment must be made firstly by deciding what would be proper

maintenance pavable to Rani. Lalitha Kumari u/s 14: the zamindari will be liable for that amount exclusively and for the balance out of Rs. 6,000 the non-zamindari properties will be exclusively liable. With reference to the amount of

maintenance chargeable against the zamindari Rani Lalitha Kumari will be entitled to her share of the compensation and allotment of lands on patta as may be determined by the Tribunal u/s 45 of Act XXVI of 1948.

129. In the result the appeals of Rani Lalitha Kumari, O. S. A. Nos. 106 and 107 of 1950 will be allowed with costs throughout payable by the plaintiff, one set, appeals O. S. A. Nos. 108 and 109 of 1950 will be allowed in, part, to the

extent indicated above and the parties will bear their costs throughout.

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Case Metadata
  • Citation: AIR 1954 Mad 19 : (1953) 66 LW 231
  • Ck Citation: (1952) 04 MAD CK 0019
  • Coram: Rajamannar, C.J; Venkatarama Ayyar, J
  • Bench: Division Bench
  • Advocates: M.C. Setalvad, Attorney General for D. Narasaraju, K.B. Krishnamurti and A.N. Rangaswami, in Nos. 106 and 107 of 1950 and M.C. Setalvad, Attorney General for C.A. Vaidyalingam, Alladi Kuppuswami and P. Venkataswami, in Nos. 108 and 109 of 1950, for the Appellant; A.G., N. Rajagopala Iyengar, P. Rama Reddi, R. Ganapathi Aiyar, C.R. Pattabhiraman, S. Ramayya Nayak, M. Seshachalapathi, C.A. Vaidyalingam and P. Venkataswami, in Nos. 106 and 107 of 1950 and A.G., N. Rajagopala Iyengar, P. Rama Reddi, S. Ramayya Nayak, D. Narasaraju, K.B. Krishnamurthi and M. Seshachalapathi, in Nos. 108 and 109 of 1950, for the Respondent
Referenced Acts & Sections
  • Evidence Act, 1872 - Section 115
  • Madras Impartible Estates Act, 1902 - Section 14, 2(3), 3, 7
  • Succession Act, 1925 - Section 82, 97
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