Vijayasamy Thevar vs Sasivarna Thevar and Others

We are unable to agree with the Subordinate Judge that in the present suit any consequential relief is prayed for. Upon the face of the plaint it is

one for mere declaration-The stamp duty due in respect of the declarations sought for, having been paid, the Subordinate Judge was in error in

holding that an ad valorem duty of Es. 3,000 with reference to the value of the Zemindari of Shivaganga in regard to which the declarations are

sought was payable upon the plaint.

We think, however, that the order rejecting the plaint must be upheld on the ground that this not a fit and proper case for the grant of relief by

way of declaration, and if it were otherwise, on the ground that the claim is a vexatious one which should not be allowed to be proceeded with.

Now as to the first ground. The declarations prayed for are:

That the proceedings and the decrees and judgments in O.S. No. 78 of 1896 on the file of the Subordinate Judge of Madura East and in

Appeal No. 14 of 1898, on the file of the High Court, are not binding on the plaintiff;

that the adoption of the second defendant is not valid; and

that the will referred to in paragraph 11 of the plaint is not binding on the plaintiff.

The case set up in the plaint shortly is that according to family custom the Zemindary in question is impartible and inalienable, that the succession

thereto is governed by the rule of primogeniture, that the estate of each holder is strictly one for life only and that though the male issue of the

holder for the time being succeeds him in preference to collateral and other heirs, yet that adoption of sons is prohibited.

The common ancestor through whom the parties trace their relationship was Uorasinga Tevar who held the Zemindari and died in 1883. He had

five sons, of whom one predeceased him leaving male issue, the third and fourth defendants.

The eldest son of Dorasinga Tevar succeeded him and died having adopted his daughter''s son, the second defendant, and leaving the will to

which the third prayer relates. The first defendant is one of the surviving sons of Dorasinga and the father of the plaintiff. The plaintiff, of course,

admits that he has no right to possession during the first defendant''s lifetime, but asserts that on his death the plaintiff is the person to succeed in

preference to even the third and the fourth defendants though their father was the elder brother of the first defendant, the ground for the preference

being the plaintiff''s seniority in point of age.

Now, let us first take the prayer in respect of the will. The observations of the Judicial Committee in Thahurain Jaipal Kunvar v. Bhaiya Indar

Bhadur Sing 31 I.A. 69 are strongly against the grant of any such declaration in the matter. Upon his own case the Zemindary is inalienable, the will

with reference to the plaintiff and in so far as it concerns the Zemindari, would be but a brutum fulmen, as to which no legal proceedings for the

specific relief prayed for should ordinarily lie. At the best the plaintiff can only argue that if the will is not declared invalid as against him it slight be

used as a piece of evidence against his case that the estate is inalienable. It would be extravagant to hold that the bringing into existence of any and

every piece of evidence would give a right to such discretionary relief. Were it otherwise, such relief might be prayed for even in respect of oral

declarations of similar evidentiary character.

Next, as to the prayer for the setting aside of the decree in O.S. No. 78 of 1896 and in appeal No. 14 of 1898 therefrom, that also is untenable

for like reasons. It would be different if the plaintiff''s case were that though each successive holder of the Zemindari was a qualified proprietor, yet

that his estate carried with it the power to represent the inheritance so as to bind his successors in respect of matters affecting him and them in

common. But, as already stated, according to him, each holder has nothing more than a bare life estate. Lastly, the prayer as to adoption is equally

unsustainable. Where the conditions warranting the validity of an adoption were in truth wanting but the party alleging the adoption pretends that

those conditions existed, one can understand that a person, whose rights would in law be affected by the adoption thus set up, should be allowed

to impeach it by suit and obtain relief in order that the cloud thus sought to be cast upon his title might be removed. Here there is nothing of the

kind. According to the plaint in no circumstances can the adoption be relied on as against the plaintiff, it being absolutely prohibited by the alleged

custom and incapable of affecting him or the Zemindari, however good and valid the adoption may be under the Hindu Law. In short the

transaction of gift and acceptance of the second defendant was so totally nugatory from the point of view of the plaintiff in relation to the

Zemindary, that it would be futile to make it the subject of judicial investigation for the purposes of the grant of specific relief by way of declaration.

Now, as to the second ground. The Zemindary in question has been the subject of litigation so often that matters relating to the devolution of the

estate since its creation about the year 1730 as well as the rules governing its ownership and enjoyment are almost matters capable of being

judicially noticed, having been repeatedly the subject of consideration and determination in the decisions of the courts inclusive of the Judicial

Committee. The litigation which sprang up on the death in 1629 of the grantee of this Zemin who took it from the Government at the beginning of

the last century was terminated by the judgment of the Judicial Committee in the well known case of Kattama Nuchiar 9 M.I.A. 539 which

established that the Zemindari, as the self-acquired estate of the said grantee, devolved on his heirs under the ordinary Hindu Law of inheritance.

The dispute which arose on the grantee''s daughter KattamaNachiar''s death in 1877 also found its way to the Privy Council and by the decision of

their Lordships it was laid down that the Zemindari was impartible and that the succession thereto passed according to rule of primogeniture to

Dora Singa Tevar, one of the grandsons of the original owner through whom the parties here have to trace their right. Muthu Vuduganatha Thevar

v. Dorasinga Thevar L.R. 8 IndAp 99 The claim which was made on Dorasinga Thevar''s death in 1883 by another grandson, viz., the son of

Kattama Nachiar, was also disposed of by the Privy Council, it being held that there was no peculiar rule of survivorship such as was alleged by

the plaintiff there and that the estate passed to the eldest son of Dorasinga in accordance with the principle on which the earlier decision in favour

of Dorasinga himself rested. The last litigation, was that which came before this court in Appeal No. 14 of 1898 (referred to in the first prayer) in

which the plaintiff''s father, the present first defendant, disputed the adoption and claimed to be entitled to the estate after the death of the late

Zemindar. This suit failed. In it the prohibition by custom of alienation and adoption was set up only to be abandoned both at the trial and in the

argument before this Court by counsel who found himself compelled as a last resort to impeach the adoption mainly on the ground of the

Zemindar''s mental incapacity said to have been induced by drink, a suggestion definitely made only after the Zemindar who was for many days in

the witness-box had left it. The history of the Zemindari brought out by these decisions pronounced upon the amplest materials and after the most

careful consideration and dealing with practically continuous litigation covering three quarters of a century, is so inconsistent with the allegations of

customs against alienation and adoption and Involving a perpetual succession of life estates as to make it clear that these allegations are fictitous

invented to bolster up a totally baseless claim which ought to be stopped in the exercise of the power inherent in this as in every Court of

competent jurisdiction ""to prevent abuse of its process, by staying or dismissing without proof actions which it holds to be vexatious."" Haggard v

Pelicier Freres (1898) A.C. 67 (J. G.) see also Remmington v. Scoles (1897) 2 Ch. 1 and Stephenson v. Garnett (1898) 1 Q.B.677 No doubt

the power is one which, ought to be exercised sparingly and only in very exceptional cases. The present case is in our opinion clearly one of that

exceptional character.

We accordingly dismiss the appeal and the revision petition with costs.