Vythinatha Ayyar and Others vs Yeggia Narayana Ayyar

The facts, so far as they need be stated for the purpose of this appeal, are as follows. The Plaintiff is the son of the first Defendant. The second

and third Defendants are the Plaintiff''s brothers. Defendants Nos. 4 to 10 are the first Defendant''s brothers and their sons. The parties are

governed by the Mitakshara Law of inheritance and the Plaintiff is undivided from his father, the first Defendant. The Plaintiff sued for partition. The

property in respect of which he sued for a share was property which came to the first Defendant from the father of Kamakshi, the first Defendant''s

adoptive mother. The District Munsif dismissed the suit on the ground that the Plaintiff could not claim a share in property which came to his father

from the maternal side. The District Judge set aside the District Munsif''s order and remanded the suit, relying on the recent decision of the Privy

Council in the Jaggainpett case (Venkayyamma Garu v. Venkataramanayyamma Bahadur Garu ILR 25 Mad. 678 at p. 687). The appeal is against

this order. We think that the order of the District Judge is right. The Privy Council case relied on does not directly decide the point in issue, but that

case has recently been explained and commented on in great detail by a Full Bench of this Court in Karuppai Nachiar v. Sankaranarayanan Chetty

ILR 27 Mad. 300. The first Defendant in the present case occupies precisely the same position quoad the property that the brothers, Niladri and

Appa Eao, occupied in the Privy Council case. In that case it was held that though "" the property was self-acquired property in the hands of their

grandfather, yet in the hands of the grandsons it was ancestral property which had devolved on them under the ordinary law of inheritance "" and

that they took it as joint family property with right of survivorship and might have partitioned it if they had so desired.

In commenting on this decision the Pull Bench of this Court pointed out that the right of survivorship referred to by the Privy Council was the

right of survivorship as understood by the Mitakshara Law (Jogesuar Narain Deo v. Ramachandra Dutt I.L.R., 23 Calc, 670 at p. 679), according

to which the right will not prevail in favour of the survivor as against the male issue of the deceased. They also laid stress on the fact that under the

Mitakshara joint family system there can be no joint family property in respect of which the male issue of the joint owners do not by birth become

joint owners with their father, as held in Sudarsanam Maistri v. Narasimhulu Maistri ILR 25 Mad. 149 at p. 155. It follows that in the present case

the Plaintiff is a joint owner with his father, the first Defendant, in the property inherited from the first Defendant''s maternal grandfather, and the

order of the District Judge is right. This being so, it is, perhaps, hardly necessary to deal with the various difficulties which, it was suggested at the

Bar, would flow from the ruling of the Privy Council. For example it was asked, what would be the position of grandsons by several daughters?

Would they take the grandfather''s property as ancestral property with rights of survivorship interse? The answer is that they belong to different

families and there could be no joint property with right of survivorship between them. In the Privy Council case the grandsons were brothers and

were members of a joint family. And again if there were two grandsons by one daughter and one grandson died leaving a son, before the property

devolved, would the property devolve on the grandson and great-grandson jointly or would the grandson, being one degree nearer, exclude the

great grandson. In regard to this question it is sufficient to say that the solution will probably be found in considering the basis of the Privy Council

decision suggested by the Full Bench, viz., the view of the ancient Hindu law that a son of an appointed daughter (putrikaputra) became by a fiction

of law a son''s son to his maternal grandfather and a member of his family, ceasing to be a member of his father''s family, while under the present

law a daughter''s son, though not ceasing to be a member of his father''s family is regarded as equal to a son''s son of his maternal grandfather,

entitled to perform his obsequies and take his property. But the grandson of an appointed daughter under the old law or of a daughter under the

modern law is not regarded as equal to a son''s son. In this view the ordinary rule of Hindu Law would prevail and the nearer grandson would

exclude the more remote great-grandson.

We dismiss the appeal with costs.