1. This is an appeal by defendants Nos. 1 to 4 from the decree of the Subordinate Judge of South Canara awarding to plaintiff possession of extensive properties, moveable and immoveable, to which the Subordinate Judge has found that plaintiff is entitled as sole owner, she being the last surviving member of an Aliyasantana family.
2. The appellants are the wife and children of one Manjappa alias Mallanna Shetti, the last surviving male member of plaintiff’s Aliyasantana family, who died in 1882.
3. Plaintiff is a lunatic whose estate has been taken charge of by the Court of Wards under the orders of Government, and the suit was brought on her behalf by the Collector of South Canara as Agent of the Court of Wards.
4. The first objection taken by the appellants is that “the Court of Wards’ Regulation V of 1804 is inapplicable to the plaintiff’s case, the sections relating to lunatics therein not being in force.” This objection rests on the fact of Sections 6 and 7 of Regulation V of 1804 so far as they related to lunatics and idiots, having been repealed by Act XXXV of 1858, which prescribes the procedure to be adopted for ascertaining whether a person alleged to be a lunatic is such or not. Section 2 of Regulation V of 1804, which gives the Court of Wards “full power and authority to take cognizance of all cases of property devolving to heirs incapacitated by minority, sex or natural infirmity” from administering their own affairs, has not been repealed. That the phrase “natural infirmity,” as used in the Regulation includes also lunacy and idiotism, is apparent from Section 5, which declares incompetent to manage on their own behalf persons “incapacitated by lunacy, idiotism or other natural infirmity.” Moreover, Section 9 of Act XXXV of 1858 expressly recognizes the authority of the Court of Wards to take charge of the estate of a lunatic.
5. In ordinary cases, where the lunacy might be open to question, the Court of Wards ought no doubt, in the first instance, to get a declaration under Act XXXV of 1858. But where, as in this case, it is admitted on all hands that plaintiff is a lunatic, their not having done so cannot be held to be fatal to the suit.
6. The next objection taken by the appellants is that “the reason alleged in the plaint for making the provisions of the Regulation applicable to the plaintiff, viz., that she is disqualified to manage her own affairs by reason of her sex, is inconsistent with the allegation that she is governed by Aliyasantana law.” As to this, it is to be observed that though the mere fact of plaintiff being a female would not be sufficient for holding her to be disqualified to manage her affairs; at the same time, the mere fact of a woman being governed by Aliyasantana law is no reason for holding that she might not be disqualified by sex alone within the meaning of the Regulation. It must depend in each case on the capacity to manage.
7. If an Aliyasantana woman is not possessed of sufficient capacity to manage her estate, the estate can be taken under the management of the Court of Wards on the simple ground of incapacity by sex. In the present case, however, there is admittedly incapacity by lunacy; and this circumstance is sufficient, as has been held above, to give the Court of Wards power to assume management of the estate with the sanction of Government. The second objection need not, therefore, be further considered.
8. It is next contended that “plaintiff who is admittedly a lunatic not having been adjudged so under Act XXXV of 1858, she cannot sue,” and, it is added, “Section 464 of the Code of Civil Procedure has no application.” It has already been held above that as “plaintiff is admittedly alunatic,” the mere absence of a formal adjudication to that effect need not, in the circumstances of this case, be held to invalidate the charge assumed by the Court of Wards with the sanction of Government; and Section 464 of the Code of Civil Procedure expressly excludes from the operation of Sections 440 to 462, and consequently also of Section 463 “any minor or person of unsound mind, for whose person or property a guardian or manager has been appointed by the Court of Wards,”–and the Collector by whom the present suit is brought on behalf of the lunatic plaintiff is the guardian so appointed.
9. It is, however, next objected on behalf of defendants that “the appointment of the Collector as guardian is not legal and valid, and the plaintiff not being properly represented, her suit is not maintainable.”
10. We see no reason for holding that the appointment of the Collector as guardian of the lunatic plaintiff is not legal and valid. A similar objection seems to have been taken before Parker, J., in Beresford v. Ramasubba I.L.R., 13 Mad., 197 and was overruled for reasons to be found at page 199 of the report. This objection must, therefore, also be disallowed.
11. The next objection is that as plaintiff has been “of unsound mind” for more than fifty years before the date of the suit, she has lost all her right to inheritance, or to the possession of the plaint properties, or to succeed to their management.
12. There is no question here of the plaintiff’s right to manage the properties. She is admittedly incapacitated for that. The only question is whether the property is hers, and such as should be managed on her behalf by the Court of Wards. Her right to the property of the Aliyasantana family, of which she and the deceased Mallanna Shetti were both members, accrued at the time of her birth.
13. Her insanity is admittedly not congenital. Consequently no question arises as to whether she is disentitled to the property in consequence of having been born a lunatic. It having once vested in her, she cannot be held to have been divested of it by her subsequent lunacy.
14. This disposes of all the preliminary objections.
15. We now have to consider what is the family property to which plaintiff is entitled.
16. And the first question is, do Exhibits I and M evidence final and absolute divisions of the family property between plaintiff’s branch and that of Mallanna Shetti? The earliest of these in date is Exhibit I (7th September 1844). It is divided into two parts marked respectively Exhibits la and lb. The former showing how the debts due to the family were divided, and the latter the immovable property, namely, into three shares, one share being alloted to be enjoyed by Manjappa Shetti, another by his nephew Nema Shetti, and the third by his sister Chandappamma. The circumstance of Manjappa Shetti, a brother, being given a share, is of itself favourable to the supposition that the division was for peaceful and separate enjoyment merely, and not a final and absolute partition of the property. However, this is further apparent from the stipulations in Exhibit Ib against any of the sharers wasting the property “under any circumstances,” and that, should any sharer sell such properties, he shall make up for the same by buying other properties; and that in case of any of the properties held in mortgage being redeemed, other suitable property shall be acquired with the redemption money. Moreover, it is expressly provided in Exhibit lb “that the property enjoyed by Manjappa Shetti or property enjoyed by Nema Shetti shall be enjoyed together, after the male descendants of both, by the descendants of the female Chandappamma.” It is pointed out on behalf of appellants that the present plaintiff, Puttamma, is not even mentioned in Exhibit Ib and was in fact excluded, because only the male members of the two branches are mentioned as entitled to possession of the shares allotted to Nema Shetti’s branch just as is done in the case of Manjappa Shetti’s share. It must here be noticed that the Manjappa Shetti referred to in Exhibit I was the grand-uncle of the lately-deceased Manjappa alias Mallanna Shetti, who will hereafter always be spoken of in this judgment as Mallanna Shetti;–also that plaintiff Puttamma is a niece of the Nema Shetti mentioned in Exhibit I. It is no doubt true that no mention is made of the plaintiff in Exhibit I, and her very existence is ignored in so far as she might have been an obstacle to Chandappamma’s branch’s right to possession of the share allotted to be enjoyed by Nema Shetti is concerned. But plaintiff was not, and, being a luntic, could not be a party to the document in question. It is not denied that she has all along been maintained as a member of the family. Consequently her not being mentioned in Exhibit I is of no consequence one way or the other. Exhibit I was held by this Court in 1865 (see Exhibit A) to be “plainly an agreement simply for the separate management by each of the three contracting parties of a separate portion of the family property,” and, as was then remarked, “the provisions in the agreement against waste and alienation, for the postponement of the succession of Chandappamma’s issue until the decease of the males, and the right of survivorship reserved to them, show with abundant clearness that there was no division.” The above was the finding of this Court in an appeal preferred by the deceased Mallanna Shetti from an order of the Civil Court of South Canara granting to Nemaya Shetti (a party to Exhibit I and uncle of the above Mallanna Shetti) the certificate under Act XXVII of 1860 for collection of debts due to Dodda Manjappa Shetti, who was also a party to Exhibit I. The decision of this Court in Exhibit A was that the grant of the certificate to Nemaya Shetti was right, “the two opposing claimants being members of an undivided family.”
17. Exhibit M is the other document on which defendants rely as evidencing partition. It is dated 16th December 1866. The parties to it are the abovementioned Nema Shetti and his nephews Brahmaya Shetti and Nemaya Shetti on the one part, and Chandappamma’s daughter Devappamma and the latter’s sons Manjappa Shetti (i.e., Mallanna Shetti now deceased) and Aparajita Shetti on the other part. It refers to the prior agreement Exhibit I and to the disputes that had arisen and the death of the senior Manjappa Shetti (see Exhibit A above noticed), and then says ” after Manjappa Shetti one of us, Nema Shetti, is now Yajaman of the family” and entitled to manage all the religious ceremonies, keeping in his possession the lands set apart for that purpose in the former Tahanama (agreement). It then divides between the two contracting parties “the lands, which were in the enjoyment and under the management of the deceased Dodda Manjappa Shetti at the time of his death,” providing, however, that “the kudtala for the assessment of all these lands shall be in the name of the Yajaman Nema Shetti” though each party is to pay to the Government separately the assessment of the lands in the possession of each. It next provides that “in case of alienating under urgent necessity” either the lands then dealt with “or any of the lands existing at present in the family, except lands alienated and given upon redemption from mortgage out of the family lands mentioned in the former Tahanama (Exhibit Ib), all should join and make the alienations,” It is then stipulated that each branch shall separately enjoy the lands now divided, as also “those previously” divided, and awarded to each, and that “during the life-time of the members of one branch there shall be no obstruction from the members of the other branch;” but in ease of lands held on mortgage being redeemed from either branch, it is provided just as in Exhibit Ib that “from the mortgage amount recovered” other land shall be acquired, and that if any of the muli lands are sold “in conformity with the above Tahanama,” other land proportionate in extent shall be aoquired; “but these amounts shall not be wasted;” and, finally, there is a provision for all the members of the two branches joining together in making an adoption for the purpose of continuing the family in case an adoption should be found necessary for the purpose. No doubt paragraph 5 of Exhibit M reserves to the members the exclusive right of disposing of its self-acquired properties; and such “self-acquisitions” are also referred to in paragraph 6. But it is clear that the properties divided under Exhibt M, viz., the properties of which Dodda Manjappa Shetti was possessed at the time of his death, were dealt with, and were intended to be retained, as family property; and plaintiff, the now sole surviving member of the family, is entitled to all the properties divided under Exhibits Ib and M, and also to any properties that may have been since aoquired in lieu of such of those lands that may have been sold under urgent necessity or with money received in redemption of any such lands which may have been held in mortgage.
18. Before leaving Exhibit M, it must here be noticed that it expressly provides (paragraph 8) for the present plaintiff, Puttamma, being maintained by Nema Shetti and his nephews “who are her brothers.”
19. The same paragraph of Exhibit M also provides that Arakamma, the younger sister of Chandappamma, should be maintained by her niece Devapapamma and the latter’s children. This Arakamma is also not mentioned in the earlier Tahanama, Exhibit Ib. It is not alleged that she was a lunatic. Consequently there is no reason for holding non-mention in Exhibit lb to mean exclusion as has been suggested with regard to plaintiff. Exhibit M, like Exhibit I, is evidence merely of an arrangement for separate enjoyment, and not a final partition.
20. The next question for consideration is whether any, and if so, which of the properties specified in the schedules attached to the plaint are “self-acquisitions” either of Nema Shetti or of defendants Nos. 1 to 4, to which these appellants are entitled.
21. The items of debt and property, respectively, claimed by defendant No. 2 as his own self-acquisitions are dealt with by the Subordinate Judge in paragraphs 23 and 24 of his judgment.
22. Of the debts, item No. 47 is found to have been part of assets due to plaintiff’s branch of the family to which Mallanna succeeded on the death of plaintiff’s brother. Debt item No. 54 and property item No. 122 were acquired by defendant No. 2, after his father’s death, and when he was in possession of the family property; and defendant No. 2 has not proved that the money paid was his own. The above items, as also Nos. 23, 28, 33, 35, 46, 47,55, 68 and 104 of the debts, have not been pressed at the hearing of this appeal; and as to the remaining items, both of debts and properties, the Subordinate Judge has given sufficient reasons for his finding that the documents were in fact obtained by Mallanna in his son’s name, the money being that of Mallanna’s family.
23. Item No. 1 of the debts is a sum of Rs. 39,999 due “under Exhibit CCLXI.” This amount is claimed by defendant No. 21, in whose name the document stands. But it is seen from the document itself that no less than Rs. 24,478, of the Rs. 39,999, constituted a pre-existing debt due to first defendant’s husband, Manjappa Shetti alias Mallanna. There is, as observed by the Subordinate Judge, no evidence of the amount having been paid by defendant No. 1 to her husband; and as to the remaining Rs. 15,521, which is alleged to have been paid in cash, the Subordinate Judge is justified in his finding that it must also have been the first defendant’s husband’s money, as first defendant’s story of her having obtained this money from her mother is not at all entitled to credit.
24. The next question is whether any, and, if so, which of the plaint items were the self-acquisitions and separate property of Mallanna? And in this connection, it has first to be considered whether it is a fact, as contended by defendants, that even subsequent to the karar of 1844, and till his death in 1860, Dodda Manjappa Shetti continued in management of the share allotted to his sister Chandappamma. The question has been discussed at length in the Subordinate Judge’s judgment, and we see no reason for differing from the conclusion arrived at by him, viz., that it was not Dodda Manjappa Shetti, but Mallanna who managed on behalf of Chandappamma. It is admitted that Mallanna was the manager from 1860. The burden of proving that property acquired by Mallanna subsequent to 1844 was acquired independently of funds belonging to the family on behalf of whom he was managing is, therefore, doubtless on the defendants. As to Mallanna’s having been possessed of capital of his own, being the sale-proceeds of a gold ornament worth about Rs. 1,000 given to him by his father, as observed by the Subordinate Judge, there is only one witness who deposed to this effect, and good grounds are stated for disbelieving his evidence. The only other indication of Mallanna’s being possessed of money prior to 1844 is to be found in Exhibit CXXX, which is the judgment in a suit brought by the said Mallanna in 1848 to recover from one Matterjiga a sum of Rs. 90-2-0 as due under a bond dated 1841. The defendant in that suit denied the debt. However, a decree was passed against him. As far as the evidence goes, this is the only transaction in money had by Mallanna prior to 1844; and as he did not obtain his decree till some five or six years after he began to manage the property of his branch of the family; and as there is no evidence that that money even if realized (as to which also there is no evidence), was applied to the purpose of acquiring any of the plaint properties; and also considering the smallness of the amount, the evidence afforded by CXXX proves nothing; and the Subordinate Judge is justified, therefore, in holding that none of the property or outstanding debts alleged by defendants to be Mallanna’s self-acquisition is proved to have been acquired by him by means other than what he was possessed of as manager of his branch of the family.
25. It is next contended on behalf of the defendants that the lands Nos. 100, 123, 126, 128, 130, 132, 135 and 139 to 144 in schedule I being self-acquisitions of Dodda Manjappa Shetti and lands Nos. 1, 2, 9, 10, 13, 14, 25, 28, 29, 43, 47, 49, 51, 55, 56, 63, 81 to 86, 88, 94, 106, 107 and 112 being the self acquisition of Dodda Nema Shetti and his nephews, the plaintiff, who was admittedly a lunatic when succession opened out to her with respect to all these properties, has no right whatever to them. No authority has been shown in support of the contention that a lunatic is excluded from inheritance under the Aliyasantana law. Even under the Hindu law there is a difference of opinion as to whether in order to exclude from inheritance lunacy must not be congenital. In any case, the test in such cases under the Hindu law is whether the defect is such as would be sufficient to prevent the claimant from offering the proper funeral oblations. Eight of succession under the Aliyasantana law is in no way dependent on capacity to offer funeral oblations. This objection must therefore be held to be invalid. For the same reason the contention that Mallanna’s will ought to be upheld on the ground that he was sole owner of the properties dealt with thereunder must fail; for plaintiff’s lunacy not being a disqualification for inheritance, Mallanna was not sole owner, and had consequently no power to dispose of the family property by will.
26. The next objection to the decree is as to Rs. 1,000 directed to be paid by defendants on account of moveables alleged to have come into their possession. The appellants contend that there is no evidence of their being in possession of these moveables. This contention appears to be well founded. This part of the lower Court’s decree must be set aside.
27. The arrangement evidenced by Exhibit CCLXII is open to all the objections stated in paragraphs 72 and 73 of the Subordinate Judge’s judgment. Moreover it cannot be binding on plaintiff who was not a party to it.
28. The objections taken in paragraphs 12 and 16 of the memorandum of appeal are withdrawn as no longer existent, the decree having been corrected in the lower Court. Those mentioned in paragraphs 14 and 16 are not pressed at the hearing. There then only remains the objection as to costs, appellants contending that they ought to have been allowed their costs on the portion of the plaintiff’s claim which was disallowed. No reason has been given for disallowing these defendants the costs now claimed, to which they seem to be entitled. The lower Court’s decree must be altered accordingly.
29. As to the additional grounds of appeal, the first is disposed of by the finding alone that Mallanna’s acquisitions were made when he was manager on behalf of the family; and the other, as to the calculation of costs, was not pressed at the hearing.
30. This disposes of the appeal.
31. There remains for consideration the objection taken by the respondent under Section 561 of the Code of Civil Procedure to that part of the decree which disallows plaintiff’s claim to lands Nos. 104, 105, 125, 127, 131 and 138 in Schedule I. These lands were, it appears, acquired by Mallanna’s younger brother, Sajip Nema Shetti, a junior member living apart from the family. The mere fact of Dodda Manjappa’s land being at the time under the management of this Nema Shetti is not sufficient to justify our holding that these lands were acquired with family funds. It is quite as likely that the acquisitions were made out of the allowances made to him by Dodda Manjappa, as remuneration for his management of his property. The burden of proof is clearly on the plaintiff and we agree with the Subordinate Judge in finding that she has failed to make out a case entitling her to these lands.
32. Being Sajip Nema Shetti’s self-acquisitions, they became on his death the property of his branch of the family; and Mallanna, as the last member of that branch, could make a valid disposal of the same. This objection of the respondents must therefore be disallowed.
33. The lower Court’s decree must be modified by striking out the part which directs defendants to make over to plaintiff moveable properties to the value of Rs. 1,000 and also by awarding to defendants their costs on the amount of the claim that has been disallowed (including these Rs. 1,000), and directing these costs to be paid out of the estate in dispute. It will be confirmed in other respects.
34. Each party must pay the other’s costs of this appeal proportionate to the amounts now allowed and disallowed and plaintiff must pay defendant’s costs of opposing the objections taken under Section 561.