Judgement 6 Law. Rep. 29 Ind. App. 156 ( 1901- 1902) Raja Chelikani v. Raja C helikani Venkataramanayyamma 67 Consolidated Appeal from a decree of the High Court (Feb. 25, 1897) reversing a decree of the District Court of the Godaveri (March 15, 1895). The appeals arose out of two original suits 8 and 12 of 1893. The former was brought by Venkataramanayyamma, widow of Niladri, against his brother Appa Rao, to establish her right to the whole or, in the alternative, to half of the property which had descended to the brothers from their maternal grandfather Venkat Rao. The latter suit was brought by Appa Rao against Venkataramanayyamma to set aside a will alleged to have been made by Niladri, and forming part of the title relied on by her. The original Court dismissed the suit 8 of 1893, and decreed in favour of the plaintiff in 12 of 1893. The High Court reversed the decision of the District Court in 8 of 1893, and decreed in favour of the plaintiff for one moiety of the property in dispute. It affirmed the decision in 12 of 1893 only so far as it set aside the will of Niladri. The appellant is the representative of Appa Rao, substituted for him after appeal to England. The whole case between the parties was tried upon the pleadings in suit 8 of 1893, namely, that brought by Niladris widow, the respondent above named. In that suit, which was brought on February 18, 1893, she relied, so far as is now material, upon the will of Venkat Rao executed in 1866. The appellant set up—(1.) That if made it had been revoked and cancelled before his death; and that it was a disposition of property only in accordance with the Hindu law of inheritance, but not intended to vary or affect the devolution of property according to such law of inheritance," and that the property was so enjoyed and devolved on the plaintiffs husband and the defendant jointly according to Hindu law. (2.) That the two brothers were " undivided" and " treated, held, and enjoyed the properties inherited from their maternal grandfather as joint family property along with their other properties without any defined separate beneficial interests therein, and on the death of the plaintiffs husband the whole property vested absolutely in the defendant by the law of survivorship, and that the plaintiff is not entitled to any portion of the said property." The Subordinate Judge held that the will of 1866 had been revoked by Venkat Rao; that if unrevoked it was not intended to alter the devolution of the property, and that it would not have excluded Appa Rao. Then upon the issues which had been raised, the one a question of law as to the estate taken by two brothers in their maternal grandfathers estate, whether it was joint with benefit of survivorship or a tenancy in common, and the other a question of fact whether, if a tenancy in common, it had been treated by the brothers and became a joint estate with survivorship, he did not decide the former, but found on the latter that the two brothers had thrown their estates into coparcenary. The High Court affirmed the finding that Venkat Raos will had been revoked. They dealt with the issue of law as to the nature of the estate taken by the two brothers, sons of Venkat Raos daughter. They pointed out that the case was one of obstructed inheritance, the grandsons not having acquired any right in it by birth. They held that grandsons by a daughter so inheriting were in a wholly different position from sons, who, according to the Mitakshara, "acquire a right by birth and thereby a community of interest " in the ancestral property of their paternal ancestors. That a similar identity of interest did not arise in the case of grandsons by a daughter as in the case of descendants in the direct male line; and that the incident of survivorship flowed from that identity of interest, and did not arise in the present case, in which that identity of interest did not exist. That a similar identity of interest did not arise in the case of grandsons by a daughter as in the case of descendants in the direct male line; and that the incident of survivorship flowed from that identity of interest, and did not arise in the present case, in which that identity of interest did not exist. They held, therefore, that in the case of grandsons by a daughter succeeding to the property of their maternal grandfather, the survivor of the grandsons would not take the entire property, but that the grandsons would take in shares which would devolve on their individual heirs, and that Niladris share devolved upon the respondent. With regard to the issue of fact, they reversed the finding of the Court below. They discredited the evidence to the effect that the brothers had constituted the property joint family 6 Law. Rep. 29 Ind. App. 156 ( 1901- 1902) Raja Chelikani v. Raja C helikani Venkataramanayyamma 68 property with the incident of survivorship by amalgamating it with property alleged to have been received from their father, Swami Rao, after the death of their mother; as well as by enjoying the property, as alleged, as joint property, in the same manner as brothers in a joint Mitakshara family after the death of the father. With regard to the mode of enjoyment, they said that, "So far as residence and food go, matters continued exactly as they had been prior to 1884, when the brothers owned no property derived from their father or mother. With regard to the mode of enjoyment, they said that, "So far as residence and food go, matters continued exactly as they had been prior to 1884, when the brothers owned no property derived from their father or mother. As to joint investments, the interest possessed by the brothers in the business carried on with the aid of their surplus incomes, as well as in property acquired thereby, is prima facie of the same character as that possessed by them in the incomes so invested (see Robinson v. Preston (( 1858) 27 L. J. (Ch.) 395.)), and there is absolutely nothing to shew that in the present case their interest was otherwise." And as to their occasionally borrowing money on their joint promissory notes, and as to the inequality of the expenditure of the brothers, they held that there was in these matters nothing inconsistent with their having in the property a common interest not subject to survivorship, and that consequently on Niladris death his "moiety passed to the appellant” (now respondent) " as his widow and heir.” The learned judges concluded "To sum up then. We find that the will of 1866 was revoked, that there was no right of survivorship between Niladri and Appa Rao, that on Niladris death the appellant (now respondent) as his widow succeeded to his property, and that the will of 1892 is not genuine"; and they made a decree in favour of the respondent for partition and other relief. Mayne} for the appellant, contended that the High Court ought to have held that the two brothers, although they succeeded as daughters sons to the last full owner, nevertheless took the estate as joint property with rights of survivorship. Being sons of the same daughter and her husband, they were in fact members of a joint Hindu family, with all the incidents of joint ownership as understood in Mitakshara law. Under those circumstances, the two brothers took in law as joint tenants, and not as tenants in common; and if that were not so, if in law they took as tenants in common, the evidence shewed that they agreed to hold nevertheless as joint tenants with rights of survivorship inter se. Under those circumstances, the two brothers took in law as joint tenants, and not as tenants in common; and if that were not so, if in law they took as tenants in common, the evidence shewed that they agreed to hold nevertheless as joint tenants with rights of survivorship inter se. The principles Laid down in the judgment appealed from are, first, that these daughters sons took an obstructed inheritance, inasmuch as they had no inchoate right vested at birth which entitled them to restrain their grandfathers alienation; second, that because they had obstructed rights of inheritance, therefore they could not have taken jointly with survivorship, for that implied an unobstructed inheritance. No doubt all unobstructed inheritance is taken jointly, but it does not follow that unless it is unobstructed it is taken as tenants in common. Reference was made to Gopalasami v. Chinnasami (( 1884) Ind. L. R. 7 Madr. 458), Jasoda Koer v. Sheo Per shad Singh (Ind. L. R. 17 Calc. 33.), and Saminadha Pillai v. Thangathanni (1Ind. L. R. 19 Madr. 70.) ; and it was contended that they had been wrongly decided, and pro ceeded on the fallacy that if the succession were an obstructed one the doctrine of survivorship did not apply. That is a principle which has never been established. For instance, self-acquisitions descend on sons as obstructed inheritance, yet in their hands they become as soon as vested joint with rights of survivorship see Rajah Ram Narain Singh v. Perturn Singh (( 1873) 20 Suth. W. R. 189, 191.); Chatturbhooj Meghji v. Dharamsi Naranji. (( 1884) Ind. L. R. 9 Bomb. 438, 450) Then, again, if property is conveyed to two members of a joint Mitakshara family, they hold jointly with survivorship Radhabai v. Nanarav. (( 1879) Ind. L. R. 3 Bomb. 151) Then, again, widows succeed jointly, and there is survivorship between them The Tanjore Case (( 1877) L. R. 4 Ind. Ap. 212; see also ( 1868) 3 Madr. H. C. 424, 452) ; Bhugwandeen Doobey v. Myna Baee. (( 1867) 11 Moores Ind. Ap. 487, 514) So also daughters succeed jointly Aumirtolall Bose v. Rajoneekant Mitter. (( 1875) L. R. 2 Ind. Ap.113, 125.) Reference was also made to Sri Gajapati Radhamani Garu v. Maharani Sri Pusapati Alakarajeswari (( 1892) L. R. 19 Ind. Ap. 184.); Raja Setrucherla Ramabhadra v. Raja Setrucherla Virabhadra. 6 Law. Rep. 29 Ind. App. Ap. 487, 514) So also daughters succeed jointly Aumirtolall Bose v. Rajoneekant Mitter. (( 1875) L. R. 2 Ind. Ap.113, 125.) Reference was also made to Sri Gajapati Radhamani Garu v. Maharani Sri Pusapati Alakarajeswari (( 1892) L. R. 19 Ind. Ap. 184.); Raja Setrucherla Ramabhadra v. Raja Setrucherla Virabhadra. 6 Law. Rep. 29 Ind. App. 156 ( 1901- 1902) Raja Chelikani v. Raja C helikani Venkataramanayyamma 69 (( 1899) L. R. 26 Ind. Ap. 167.) The evidence, moreover, shewed that the intention of these two daughters sons was to hold jointly with rights of survivorship. Jardine, K.C., and Phillips for the respondent, contended that the High Court was right for the reasons given above in their judgment for holding that the daughters sons on succeeding to their grandfathers estate take separate and independent shares as tenants in common without the incident of survivorship. Reference was made to Mitakshara, c. 1, s. 1, v. 27, and c. 2, s. 7; also to Jasoda Koer v. Sheo Per shad Singh (Ind. L. R. 17 Calc. 33.), Saminadha Pillai v. Thangathanni (Ind. L. R. 19 Madr. 70.), and Gopalasami v. Chinnasami (Ind. L. R. 7 Madr. 458.), which it was contended were rightly decided for the reasons therein stated. They also referred to Sudarsanam Maistri v. Narasimhulu Maistri (( 1901) Ind. L. R. 25 Madr. 149, 153) to shew the nature of joint family property and its descent and incorporation with other joint family estate. All the sons of different daughters could not take their maternal grandfathers property jointly, and there was no ground for saying that on its descent it must be held jointly as between the sons of the same daughter, and separately as between the sons of different daughters. It must be taken in separate and independent shares as between the cousins, and there was no ground for the distinction contended for that so much of it as was held by brothers must be held on a different tenure, namely, as joint tenants with rights of survivorship. The evidence did not warrant a finding that these brothers had consented to hold jointly. Nor did the evidence prove any intention on the part of Venkat Rao to revoke his will, or that he did do so. The evidence did not warrant a finding that these brothers had consented to hold jointly. Nor did the evidence prove any intention on the part of Venkat Rao to revoke his will, or that he did do so. The findings of the Courts below in favour of a revocation were no doubt concurrent; but their conclusions were based on materially different grounds, shewing disagreement in their appreciation of the evidence about material facts. But assuming a revocation, it was admitted that his daughters sons took obstructed successions. The result was that there was no survivorship between them. Mayne replied. June 18. The judgment of their Lordships was delivered by LORD LINDLEY. A Hindu gentleman named Venkat Rao, living in the province of Madras, where the Mitakshara law prevails, died in 1869 leaving one widow who died in July, 1875, and one daughter who died in 1884. He left no other widow and no descendant except his daughter and her issue. His daughter married and left two sons, namely, Niladri and Appa Rao. Niladri was born in his grandfathers lifetime and died in 1892; Appa Rao was born after his grandfathers death and died in 1901. Venkat Raos property was his own separate property. The litigation which has culminated in these appeals is between persons claiming under these two brothers, grandsons of Venkat Rao ; and the main questions raised on the appeals and which their Lordships have to determine are as follows, namely — (1.) Did Venkat Rao leave a will, or did he die intestate? (2.) If he died intestate, did his property descend on the death of his daughter to her two sons jointly with benefit of survivorship, or jointly or in common without benefit of survivorship? In the latter case, Niladris share would on his death devolve on his widow and children. There was a subordinate question relating to a supposed will of Niladri in favour of his widow; but this will was found to be a forgery by two Courts in Madras, and it has not been seriously contended before their Lordships that this alleged will can be now relied upon. No further allusion will therefore be made to it. There was a subordinate question relating to a supposed will of Niladri in favour of his widow; but this will was found to be a forgery by two Courts in Madras, and it has not been seriously contended before their Lordships that this alleged will can be now relied upon. No further allusion will therefore be made to it. As regards the first question, it is clearly proved that Venkat Rao made a will disposing of his property in favour of his wife for her life, and after her death in favour of his daughter for her life, and after her 6 Law. Rep. 29 Ind. App. 156 ( 1901- 1902) Raja Chelikani v. Raja C helikani Venkataramanayyamma 70 death in favour of his grandson by her, i.e., Niladri. This will was made in 1866, when Venkat Rao was ill; it was put into an envelope and was deposited and registered in the office of the district registrar, where it remained until he died. Venkat Rao, however, recovered from his illness, and in 1837 he executed a power of attorney appointing a vakil to obtain the will out of the registry and to restore it to him. Owing to some blunder this was not done. Venkat Raos intention to get his will back into his own possession, and not to leave it as it was, cannot be doubted. There is some evidence to shew that he believed he had destroyed it. He certainly cancelled some grants of land recited in it. Persons existed whose interest it was to claim under it, but no one ever did so, although it is difficult to believe that none of them knew of it. For nearly thirty years no one ever thought of asserting any claim under it. The revocation of this will does not depend on any English ordinance or code; and actual destruction or a formal revocation in writing are not essential to constitute revocation see Pertab Narain Singh v. Subhao Kooer. (L. R. 4 Ind. Ap. 228, 245.) The District Judge who saw the witnesses came to the conclusion that the will was revoked, and his decision has been affirmed by the High Court. After carefully considering the evidence, their Lordships are not prepared to advise His Majesty that their decision on this point ought to be reversed. The will must therefore be treated as revoked. 228, 245.) The District Judge who saw the witnesses came to the conclusion that the will was revoked, and his decision has been affirmed by the High Court. After carefully considering the evidence, their Lordships are not prepared to advise His Majesty that their decision on this point ought to be reversed. The will must therefore be treated as revoked. The next question which arises is whether the two grandsons took jointly with benefit of survivorship, or whether each took an undivided share which on his death devolved upon his representatives or assigns. Upon this question the Courts below have differed. The District Judge held that they were joint owners with benefit of survivorship. He did not decide that they acquired the property as joint owners, but he held that they had so dealt with it as to shew that it was joint property. The High Court held that they succeeded as owners in common without benefit of survivorship, and that they never ceased so to hold it. The High Court followed a previous decision of the High Court of Calcutta in Jasoda Koer v. Sheo Per shad Singh (Ind. L. R. 17 Calc. 33.), the correctness of which was strenuously denied by Mr. Mayne and must be considered. The law of inheritance in the case of women is left in great obscurity by the Mitakshara. The subject is dealt with in chap, ii., s. 11, and has more than once been considered by this Board. The nature of a widows estate was settled in two cases in 11 Moores Ind. App. pp. 139 and 487 ; and the nature of a daughters estate was considered in Chotay Lal v. Chunno Lal. (( 1878) L. R. 6 Ind. Ap. 15.) It was there decided that under the law of the Mitakshara a daughters estate inherited from the father is a limited and restricted estate only and not stridhun. Upon her death the next heirs of her father succeed thereto. In Muttu Vaduganadha Tevar v. Dora Singha Tevar (( 1886) L. R. 8 Ind. Ap. 99; S.C. Ind. L. R. 3 Madr. 290) the same principle was applied to cases in Madras governed by the Mitakshara law. Their Lordships therefore consider it conclusively established that, in this case, Niladri and Appa Rao on their mothers death succeeded as heirs to their grandfathers estate. Ap. 99; S.C. Ind. L. R. 3 Madr. 290) the same principle was applied to cases in Madras governed by the Mitakshara law. Their Lordships therefore consider it conclusively established that, in this case, Niladri and Appa Rao on their mothers death succeeded as heirs to their grandfathers estate. What then was the character of the property which they took? In the grandfathers hands it was separately acquired property. In the hands of the grandsons it was ancestral property which had devolved on them under the ordinary law of inheritance. Niladri and Appa Rao were members of a united family. "According to the principles of Hindu law, there is co-parcenaryship between the different members of a united family, and survivorship following upon it, There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceaseds lifetime a common interest and a common possession" Katama Natchiar v. Rajah of Shivagunga. (( 1863) 9 Moores Ind. Ap. 539, 611.) It is true that on acceding to their grandfathers property, Niladri and Appa Rao might have 6 Law. Rep. 29 Ind. App. 156 ( 1901- 1902) Raja Chelikani v. Raja C helikani Venkataramanayyamma 71 partitioned it, but they did not do so. It is the right to partition which determines the right to take by survivorship ; and where there is no partition the survivor takes. The High Court have proceeded on the principle that although persons who succeed to joint family property take jointly if their inheritance is unobstructed, yet that in cases of obstructed inheritances those who succeed take as tenants in common and not as joint tenants. But the authorities referred to by Mr. Mayne in his very able argument shew that this last proposition is by no means universally true. Members of a joint family who succeed to self-acquired property take it jointly Rajah Ram Narain Singh v. Pertum Singh (20 Suth. W. R. 189), and see Rampershad Tewarry v. Sheochurn Doss (( 1866) 10 Moores Ind. Ap. 490.); but it may be that where sons succeed the inheritance as to them is unobstructed. Widows succeed jointly the Tanjore Case (3 Madr. H. C. 424.), Bhugwandeen Doobey v. Myna Baee (11 Moores Ind. Ad. W. R. 189), and see Rampershad Tewarry v. Sheochurn Doss (( 1866) 10 Moores Ind. Ap. 490.); but it may be that where sons succeed the inheritance as to them is unobstructed. Widows succeed jointly the Tanjore Case (3 Madr. H. C. 424.), Bhugwandeen Doobey v. Myna Baee (11 Moores Ind. Ad. 487, 514, 5, B), and Sri Gajapathi Nilamani Patta, &c. v. Sri Gajapathi Radhamani Patta, &c. (L. R. 4 Ind. Ap. 212, 221.); so do daughters Aumirtolall Bose v. Rajoneekant Mitter (L. R. 2 Ind. Ap. 113, 126.), and see Srimuttu Muttu Vizia Ragunada, &c. v. Dorasinga Tevar. (( 1871) 6 Madr. H. C. 310) In Jasoda Koer v. Sheo Pershad Singh (Ind. L. R. 17 Calc. 33.) the High Court of Calcutta certainly decided that the sons of a daughter (she being the only child) succeeded to their grandfathers property in undivided moieties and not jointly with benefit of survivorship. This decision was in 1889; it was followed in 1895 by the High Court of Madras in Saminadha Pillai v. Thangathanni. (Ind. L. R. 19 Madr. 70.) The decision of the High Court now under appeal is based upon these authorities. The Calcutta decision appears to their Lordships to have been based upon a view of Mitakshara law which further investigation shews to be erroneous, namely, upon the view that, according to the Mitakshara law, the doctrine of survivorship is limited to unobstructed successions and to the succession to the joint property of re-united coparceners. No authority for such a limitation can be found anterior to the Calcutta case. The only previous decision directly in point is Gopalasami v. Chinnasami (Ind. L. R. 7 Madr. 458.), where the two sons of a daughter were held to be jointly entitled to their grandfathers property; but the decision was based on the way they had dealt with the property rather than on the title they acquired on succession. The head-note is rather misleading on this point. The authorities to which their Lordships have referred, and others cited by Mr. Mayne and which their Lordships have examined, although not directly in point are clearly opposed to the general doctrine Laid down in the Calcutta case. It does not follow that because the reasons given for a decision are unsatisfactory the decision itself is erroneous. The authorities to which their Lordships have referred, and others cited by Mr. Mayne and which their Lordships have examined, although not directly in point are clearly opposed to the general doctrine Laid down in the Calcutta case. It does not follow that because the reasons given for a decision are unsatisfactory the decision itself is erroneous. But in this case the decision in question appears to their Lordships to be opposed to the principles which regulate the devolution of joint family property to which the Mitakshara law is applicable, and they therefore cannot adopt the decision in 17 Calf 33 They think it erroneous. The decision in 19 Madr 72 and the decision appealed from are both based upon it, and are open to the same objections. In the result, therefore, their Lordships agree with the District Judge. He, however, considered that the conduct of the parties and the mode in which the grandsons dealt with and enjoyed-the property were sufficient to decide the case. But their Lordships do not think that the evidence so unmistakably negatives ownership in common as distinguished from joint ownership as to render it safe to decide the case on this ground alone. There is certainly nothing in the evidence which supports the view that the grandsons held the property in common rather than jointly; there is no separate dealing with any share. It is not suggested that if they succeeded jointly they ever ceased to hold it in the same way. The property was treated and dealt with as a whole, and so far joint ownership rather than ownership in common is the more probable. After their mothers death, and whilst their father was living, Niladri managed the whole property and acted as his brothers guardian during his minority, which would 6 Law. Rep. 29 Ind. App. 156 ( 1901- 1902) Raja Chelikani v. Raja C helikani Venkataramanayyamma 72 hardly have been the case if the brothers had their separate interests in undivided shares. But there is nothing so clearly decisive either way as to render it unnecessary, in their Lordships opinion, to decide the nature of the ownership which was acquired by the grandsons when they succeeded to the property. But there is nothing so clearly decisive either way as to render it unnecessary, in their Lordships opinion, to decide the nature of the ownership which was acquired by the grandsons when they succeeded to the property. It is, however, satisfactory to find that the decision arrived at is in complete accordance with the mode in which the property has been dealt with by the family as long as Niladri was alive. Their Lordships will therefore humbly advise His Majesty to dismiss the plaintiffs cross-appeal (No. 57 of 1900) setting up the will of Venkat Rao, and to allow the defendants appeal (No. 1 of 1900), and to dismiss the plaintiffs appeal to the High Court with costs, and to reverse the decree of the High Court so far as it is inconsistent with the decree of the District Judge, and to restore that decree and to remit the suit (No. 8 of 1893) whence these appeals arise to the High Court for the purpose of executing or causing to be executed the decree of the District Judge and the order made on these appeals. It remains only to deal with the costs of the appeals. These must be paid by the plaintiff who has failed. But their Lordships cannot refrain from expressing their strong disapprobation of the expense which has been unnecessarily incurred in this case. A joint appendix of moderate dimen sions would have been ample for all the purposes of these appeals. The appellants legal advisers in India appear to have endeavoured, but unsuccessfully, to reduce the bulk of matter to be printed. But, instead of an appendix containing no more than was necessary, several volumes of over 1000 pages each have been translated and printed at vast expense, setting out accounts running over many years which it was wholly unnecessary to print and which no one has referred to. Their Lordships regard such reckless extravagance as an abuse of the rights of suitors, whether appellants or respondents. The parties to blame are in India, and their Lordships have no power to ascertain who they are nor to make them responsible for the abuse. Their Lordships will do what they can. Their Lordships regard such reckless extravagance as an abuse of the rights of suitors, whether appellants or respondents. The parties to blame are in India, and their Lordships have no power to ascertain who they are nor to make them responsible for the abuse. Their Lordships will do what they can. They will call the attention of the High Court of Madras to the case, and suggest to them the propriety of exercising their jurisdiction over those who conduct litigation and prepare appeals from their decisions, and of taking such steps as may be practicable to compel those who are to blame in this instance to pay the costs unnecessarily incurred. If nothing can be done under existing regulations, rules should be made to check such gross abuses. Their Lordships will direct the registrar in taxing the costs to take no account of any of the volumes except the two which were bound and used at the hearing, and not to allow more in respect of them than he thinks fair and reasonable.