Sampath Kumar (Minor) by mother and guardian v. N. Kamkambujam VS V. T. S. Sevuga Pandia Thevar
1963-08-14
P.RAMAKRISHNAN, S.RAMACHANDRA IYER
body1963
DigiLaw.ai
JUDGMENT Ramachandra Iyer, C.J.- These Appeals have been respectively filed by the proprietor of the erstwhile Seithur Zamin and his illegitimate son against the order of the Estates Abolition Tribunal, Ramanathapuram, directing apportionment between them of the compensation amount paid by the Government on their taking over the Zamin under the provisions of the Estates Abolition Act (Madras Act XXVI of 1948). It will be convenient to refer to the ranks of the parties with reference to the latter of three appeals. Seithur Zamin was an impartible estate governed by the provisions of the Impartible Estates Act, 1904. The father of the appellant who was then the owner of the estate had executed a will bequeathing the entire zamin to the appellant Sevuga Pandia Thevar. On the taking over of the Estate under the Abolition Act which was on 8th March, 1954, the Government deposited a sum of Rs. 68,589 as advance compensation. Sevuga Pandia Thevar has five legitimate sons and two daughters. He has also an illegitimate son, the respondent who is now a minor. The respondent's mother applied before the III Presidency Magistrate, Saidapet, in M P. No. no of 1953 against the appellant for the payment of maintenance to her minor son. There was an order directing him to pay maintenance to the respondent at the rate of Rs. 100 per mensem. That order was confirmed on revision by this Court and it is stated that subsequently the paternity of the appellant has also been established in a civil suit. As soon as the advance compensation amounts were paid, the Zamindar's legitimate sons raised a claim that they were entitled to a share in such amounts under section 45 of the Abolition Act. This claim was, however, repudiated by the appellant who claimed that he was solely entitled to the amount as the zamindary by the very terms of a testamentary disposition by his father formed his self-acquired property. Though this defence did not succeed before the Tribunal, this Court upheld it on appeal and held that Sevuga Pandia Thevar (Appellant) took the zamin as his self-acquired property. The judgment of this Court has been reported in Sevuga Pandia Thevar v. Thygasundaradas Thevar1. We are now informed that an appeal has been filed against this judgment in the Supreme Court and that the same is pending in that Court.
The judgment of this Court has been reported in Sevuga Pandia Thevar v. Thygasundaradas Thevar1. We are now informed that an appeal has been filed against this judgment in the Supreme Court and that the same is pending in that Court. In the meanwhile the Government deposited two further sums of Rs. 33,489 and Rs. 50,653-07 as additional advance compensation and as the first instalment of the final compensation. The respondent, the illegitimate son of the appellant, thereupon filed an application for his share of compensation under section 42(1) read with section 45 of the Abolition Act, as a person entitled to maintenance from the impartible estate. The Tribunal purporting to follow the decision of this Court in Chella Dorai v. Chinnathambiar2held that the respondent would be entitled to a share in the compensation amount. Computing his share as 1/40th, the Tribunal passed an order directing payment out of a sum of Rs. 3,743-26 nP. subject to satisfactory security being furnished as the respondent was a minor; at the same time and as part of its order, it absolved the appellant of his liability to pay maintenance at the rate of Rs. 100 per mensem as directed in M.P. No. no of 1953 on the file of III Presidency Magistrate, Saidapet. Both the parties before the Tribunal have filed the present appeals. The appellant has contended that the property being his self-acquired property his illegitimate son would not be entitled to any share in the compensation amount ; the respondent on the other hand contends that as the legitimate sons had not made any claim to the compensation amount the entire one-fifth share in the amount should be paid over to him. A further objection has also been taken on his behalf as to the legality of the Tribunal's order setting aside the order of the Presidency Magistrate passed under the provisions of section 488 of the Criminal Procedure Code. There can be little doubt that the direction of the Tribunal absolving the appellant of his liability to pay maintenance due under the order of the Presidency Magistrate is invalid. The jurisdiction of the Tribunal is limited by the terms of the Statute. It has no further power to cancel or set aside or vary a valid order of maintenance passed by the criminal Court on the ground that there has been a change of circumstances or for other reasons.
The jurisdiction of the Tribunal is limited by the terms of the Statute. It has no further power to cancel or set aside or vary a valid order of maintenance passed by the criminal Court on the ground that there has been a change of circumstances or for other reasons. If the circumstances have so changed as to absolve the person liable to pay maintenance, the proper procedure will be to apply to the criminal Court under section 488 (4) of the Criminal Procedure Code or to file a civil suit. That direction of Tribunal will, therefore, have to be deleted. But the more important question in the appeal is whether the respondent is entitled to any share in the compensation amounts. It has been admitted by both the parties, and indeed the Tribunal itself has proceeded on that basis, that the case has got to be decided on the assumption that the decision of this Court in Sevuga Pandia Thevar v. Thyagasundaradas Thevar1is correct and that the zamin should be treated as the self-acquired property of the appellant so long as that judgment remains in force. The respondent's claim for a share in the compensation amounts rests on section 45 of the Abolition Act. That provision only applies to an impartible estate taken over by the Government and which had been regarded as property of the joint Hindu family for the purpose of ascertaining succession thereto. The decision in Chella Dorai v. Chinnathambiar2was one where the illegitimate son of holder of an impartible estate claimed a right to share in the compensation amount along with his legitimate brothers. That was a case where succession to the impartible estate was on the basis that it was joint family property. But in the present case it is conceded (for the purpose of this case) that the appellant had right of disposition over the property as his self-acquired property. It has, therefore, to be decided whether the respondent could be said to have an interest in the impartible estate. If the legitimate sons do not have any interest in such an estate, it is difficult to see how an illegitimate son could have any.
It has, therefore, to be decided whether the respondent could be said to have an interest in the impartible estate. If the legitimate sons do not have any interest in such an estate, it is difficult to see how an illegitimate son could have any. section 9 of the Impartible Estates Act specifies the persons who are entitled to maintenance out of the impartible estate where succession to such an estate is regulated on the footing that it is regarded as joint Hindu family property. Under the Hindu Law the putative father would be liable to pay maintenance to his illegitimate adult son. Vide Kuppa v. Singaravelu1. The question whether that personal right will attach to the impartible estate which is the self-acquired property of its holder has been the subject-matter of consideration in Subbayya v. Karudappa2. That was a case where a legitimate adult son claimed maintenance from his father who held an impartible estate as his own separate property and not as joint family property. The learned Judge held that the son would not be entitled to claim any maintenance from such property. The Court, however, in this respect recognised a distinction between an impartible zamindari in the hands of his father as joint family property and where it was his self-acquired one. The position of an illegitimate son cannot obviously be higher than that of legitimate son where the impartible estate is the separate property of father. Apart from a right to recover maintenance personally from his father, an illegitimate son will have no interest in such impartible estate during his father's lifetime. He will have therefore no right to any share in the compensation amount on the estate being taken over by the Government under the Abolition Act. The order of Tribunal cannot, therefore be sustained and it is accordingly set aside. Appeal Nos. 23 and 29 of 1962 will be allowed and Appeal No. 20 of 1962 will stand dismissed. The order of the Tribunal vacating the order of maintenance granted by the Criminal Court is set aside. There will be no order as to costs. V.S.-----Ordered accordingly.