Tottempudi Venkataratnam vs Tottempudi Seshamma and Others

The first question for determination in these second appeals is whether the property which T. Subbayya purported to deal with by his will

(exhibit VI) was the family property of the Plaintiff and the sixth Defendant or the self-acquired property of T. Subbayya. The Subordinate Judge

held that the property in question was family property. The District Judge was of opinion that it was self-acquired. The will recites that one-fourth

of the immoveable property dealt with by the will was ancestral property and that the whole of the moveable property was self-acquired. It is

common ground that one-fourth of the immoveable property was ancestral. The District Judge, in paragraph 4 of his judgment, states correctly the

law applicable to the question which he had to decide. He says: ""The law on the point I take to be thus: Subbayya''s separate property would be

property (1) acquired by his own exertions, (2) without the aid of family funds, and (3) which he did not mix with family property intending to add

it to the family funds."" The District Judge was of opinion that these three conditions were satisfied. In coming to this conclusion he relied mainly (1)

on the statement in Subbayya''s will, (2) the conduct of Subbayya''s son (the sixth Defendant) in not objecting to the will, and (3) the so-called

reference to arbitration by the first and sixth Defendants embodied in exhibit VII.

In our opinion none of these matters is evidence upon the question whether the property dealt with by the will was ancestral or self-acquired. At

the time the will was executed, the testator would seem to have been under the honest belief that he had full disposing powers over the property on

the ground that it was self-acquired ; but the statement in the will that the property was self-acquired is clearly not evidence of the fact that it was

self-acquired. As regards the conduct of the sixth Defendant in not opposing the will, he no doubt, so far as he was capable of forming an opinion

at all, shared Subbayya''s belief that the property dealt with by the will was self-acquired; and his acquiescence was based on the supposition that

Subbayya had full disposing power over the property.

As regards exhibit VII it is clear that at the time the so-called submission to arbitration was made, no question had arisen between the parties to

the submission as to whether or not the testator had disposing power over the property. The so-called ''arbitrator'' was appointed to divide the

property in accordance with the provisions of the will. The submission to arbitration therefore carries the case no further than the statement in the

will. The District Judge apparently attached little weight to the oral evidence and observed that the witnesses probably had but little personal

knowledge of Subbayya''s affairs. Here we agree with him. Eliminating, then, the matters upon which the District Judge based his conclusion, what

is left to rebut the presumption that the property was family property except the fact that from small beginnings the property became something

considerable, worth about Rs. 20,000? This is not enough. As the Subordinate Judge points out the growth of the property was the work of over

half a century and was partly at least the product of the skill and labor of Subbayya''s father; and, admittedly, there was a considerable nucleus of

joint property to start with, We agree with the finding of the Subordinate Judge on the third issue and we think there was no evidence to support

the finding of the District Judge.

It was contended on behalf of the Respondents that even assuming the property to be family property, the disposition effected by the will could

not be impeached by the Plaintiff. It was argued that if such a disposition of family property had been effected inter vivos by Subbayya as the

manager of the family, with the consent of the sixth Defendant, the only adult member of the family, it would have been binding on the Plaintiff, that

the handing over of a proportion of the property for the maintenance and marriage expenses of Subbayya''s second wife and the daughters of his

second wife, was an arrangement which it would have been reasonable and proper for him to have made, that it would have been competent to

him to have made such a disposition of the property inter vivos in his capacity as managing member, and that being so, it was equally competent to

make the disposition by the will. In the present case we feel no doubt that Subbayya made his will under the belief that he had full disposing power

over the property. We hold that in law, he had no such power and for the purposes of this branch of the Appellant''s argument it was conceded he

had no such power. But we are asked to presume that a man who, acting on the assumption that he could make any testamentary disposition he

pleased with reference to his property, deals with that property by will, would have made the same disposition of his property inter vivos if he had

been aware that his rights over the property were only those of the manager of an undivided family property. We do not think we are entitled to

make any such presumption or to speculate what Subbayya would or would not have done if he had been aware that the property in question was,

in law, not self-acquired but ancestral. This being so, it is not necessary for us to consider how far Mr. Krishnaswami Ayyar''s proposition that,

with reference to an ancestral estate, testamentary disposition stands on the same footing as a gift inter vivos is supported by the authorities. We

may observe, however, that the general proposition in the judgment of the Privy Council in the case of Baboo Beer Pertab Sahee v. Maharajah

Rajendar Pertab Sahee 12 Moo. I.A. 38, ""Decided cases, too numerous to be now questioned, have determined that the testamentary power

exists, and may be exercised, at least within the limits which the law prescribes to alienation, by gift inter vivos ""was made, as the context shows,

with reference to self-acquired property, and that the authorities which go to show that as regards an undivided share of coparcenary property the

powers of giving and bequeathing are co-extensive (see, for instance, Court of Wards v. Venkata Surya Mahipati Ramakrishna Rao ILR 20 Mad.

167 at p. 183 do not help the Respondent, since the disposition which Subbayya purported to make by his will, cannot, in any view, be regarded

as a disposition of an undivided share of family property. The will does not purport to deal with an undivided share but with the whole property.

Mr. Krishnaswami Ayyar also contended that the award was binding on the Plaintiff. The award is not binding on the Plaintiff so far as the

question before us is concerned for the reason, amongst others, that the question whether the lands were ancestral or self-acquired was no part of

the subject-matter of the submission to arbitration or of the award. As has been pointed out, the arbitrator was appointed to divide the property in

accordance with the provisions of the will.

The Plaintiff''s claim in this case was in the alternative. He asked that either he or his father (the sixth Defendant) should be put in possession of

the whole of the properties in question or alternatively, that he (the Plaintiff) should be put in possession of a moiety of the properties after partition.

The Subordinate Judge held that the Plaintiff was only entitled to a moiety. The Plaintiff appealed against the decree of the Subordinate Judge in so

far as it only gave him a moiety. In his appeal to this Court the point that he is entitled to the whole is not taken in the grounds of appeal, but the

question was argued before us. We think the Subordinate Judge was right. The sixth Defendant also appealed against the decree of the

Subordinate Judge in so far as it only gave a moiety of the lands to the Plaintiff, and this appeal was dismissed. He appealed to this Court against

the decree of the lower Appellate Court and then abandoned his appeal. As regards one undivided moiety the Plaintiff is suing on behalf of his

father. In these circumstances we think the Plaintiff''s case, in so far as he claims to be entitled to the whole, fails. In Ramanna v. Venkata ILR 11

Mad. 246 the son succeeded in setting aside an alienation, though an earlier suit brought by the father to set aside the same alienation failed, the

result being that the father succeeded in recovering through his son what he could not recover himself and what he was estopped from recovering

by a suit instituted in his own right. But this case is distinguishable. It appears from the papers in the case, though it is not made clear in the report,

that the father''s suit was to set aside the alienation, not on the ground that he had no power to alienate, but on the ground that ho had been

coerced into making the alienation. Second Appeal No. 798 of 1901 is, therefore, dismissed. We allow Second Appeal No. 799 of 1901, set

aside the decree of the lower Appellate Court and restore the decree of the Subordinate Judge. The order as to costs in the Court of First Instance

made by the Subordinate Judge will stand. Both in the lower Appellate Court and in this Court the Plaintiff''s case has been that he was entitled, to

the whole of the property in question. This being so, the parties will bear their own costs in this Court and in the lower Appellate Court.