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PETITIONER: CHINNATHAYI alias VEERALAKSHMI

       Vs.

RESPONDENT: KULASEKARA PANDIYA NAICKERAND ANOTHER(and connected appeals)

DATE OF JUDGMENT: 14/12/1951

BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND FAZAL ALI, SAIYID AIYAR, N. CHANDRASEKHARA

CITATION:  1952 AIR   29            1952 SCR  241  CITATOR INFO :  RF         1975 SC 895  (6)  R          1981 SC1937  (31)  R          1982 SC 887  (19,22)  D          1988 SC 247  (11)  RF         1991 SC1972  (16)

ACT:     Impartible       estate--Succession--Extinction       of branch--Disputes as to  succession--Compromise--Construction of  deed--Disruption of family----Renunciation of  right  to succession by junior members of other  branches--Sufficiency of  evidence--Right  to effect partition-Effect  of  general words of release.

HEADNOTE:     To establish that an impartible estate has ceased to  be joint  family  property  for purposes of  succession  it  is necessary to prove an intention,  express or implied, on the part  of the junior members of the family to give  up  their chance  of  succeeding  to the estate. In each  case  it  is incumbent  on the plaintiff to adduce  satisfactory  grounds for  holding  that the joint ownership  of  the  defendant’s branch  in the estate was determined so that it  became  the separate property of the last holder’s branch.  The test  to be  applied is whether the facts show a clear  intention  to renounce or surrender any interest in the impartible  estate or a relinquishment of the right of succession and an inten- tion to impress upon the zamindari the character of separate property.     The  right to bring about a partition of  an  impartible estate cannot be inferred from the power of alienation  that the holder thereof may possess.  In the case of an  imparti- ble  estate the power to divide it amongst the members  does not exist, though the power in the holder to alienate it  is there,  and  from the existence of the one power  the  other cannot  be deduced, as it is destructive of the very  nature and character of the estate and makes it partible property.     A  member of a joint family owning an impartible  estate can on behalf of himself and his heirs renounce his right of succession but any such relinquishment must operate for  the benefit  of  all the members and the surrender  must  be  in

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favour of all the branches of the family as representing all its members. General  words  of  release in a release deed  do  not  mean release of rights other than those then put up, and have  to be limited to the circumstances which were in the contempla- tion of the parties when it was executed. 32 242      On the death of the holder of an impartible estate  who represented the first branch his widow K got into possession claiming  that the estate was the separate property  of  her husband  and also under a will.  Disputes arose between  her and  the  members of the 2nd, 3rd and 4th  branches  of  the family  and  these  were settled amicably.  S  who  was  the senior member of the 3rd branch obtained village D and  one- fourth  of certain pannai lands  as absolute owner and  exe- cuted  a  release  deed on 6th May, 1890,  in  these  terms: "Whatever  rights over the said zamin properties and in  all other above mentioned properties S might possess he gives up such rights absolutely in favour of the said K and her heirs enabling  them  to enjoy them with the power  of  alienation thereof  by  gilt, sale, etc.........  The said  S  and  his heirs shall have no claim at all to the properties shown  as belonging  to  K’S who represented the 2nd  branch  and  had instituted a suit against K compromised the suit on the 10th May, 1890, under a deed which provided inter alia: (i)  that the  zamindari shall be enjoyed by K till her  lifetime  and that  KS and his heirs shall after the lifetime of  K  enjoy the  zamindari except village D which was given to  S;  (ii) village  B and one-fourth of certain pannai lands  shall  be given to KS absolutely; (iii)all other pannai lands,  build- ings  and  movables which belonged to K’s husband  shall  be enjoyed  by K and her heirs absolutely."  On the death of  K the estate became vested in Z, the son of KS.  On the  death of  Z  without issue the second branch  became  extinct  and disputes  arose with regard to the ownership of  the  pannai lands  and buildings, village B, and the  zamindari  between the  widow  of Z (who was the grand-daughter of K)  and  the senior members of the 3rd and 4th branches:      Held  (i)  that  as KS was competent  to  alienate  the pannai lands and buildings in favour of K and vest her  with absolute  title, and S had also agreed to give them  to  her absolutely,  K became the absolute owner of these lands  and buildings  and these ceased to be part of the  joint  estate and  devolved on the grand-daughters of K as  her  stridhana heirs. (ii)  In view of the arrangement of 1890 it was not open  to any of the parties to deny that the village B was  separated from the zemindari and given to KS absolutely as his private property. The village consequently devolved on Z as separate property and on his death it devolved on his widow.      (iii)  The arrangement made in 1890 did not evidence  a partition  amongst the members of the joint family or  prove an intention on the part of the junior members of the family to  renounce their expectancy of succession by  survivorship on  failure of the male lineal descendants in the branch  of KS.      (iv) That the recitals in the release deed executed  by S had to be read in the light of the compromise in the  suit of KS, and the 243 proper  inference from both the documents read together  was that S renounced only his right to succeed to the  zemindari immediately as the seniormost member of the family and  that he did not renounce his right or the right of his branch  to

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succeed  to the zemindari by survivorship if and when  occa- sion  arose; the senior member of the 3rd branch was  there- fore  entitled to succeed to the zemindari in preference  to the senior member of the 4th branch and the widow of Z.   Vadrevu   Ranganayakamma  v.  Vadrevu  Bulli  Ramaiya   (5 C.L.R.439),  Sivagnana  Tear v. Periasami (5  I.A.  51)  and Thakurani  Tara Kumari v. Chaturbhuj Narayan Singh (42  I.A. 192)distinguished. Sartaj  Kuari’s case (15 I.A. 51), Konammal v. Annadana  (55 I.A. 114), Collector of Gorakhpur v. Ram Sunder Mal  (I.L.R. 56  All. 468 P.C.), Sri Raja Lakshmi Devi Garu v.  Sri  Raja Surya Narayana (I.L.R. 20 Mad. 256 P.C.) and Directors  etc. of L.& S.W. Ry. Co. v. Richard Doddridge (L.R. 4 H. L.  610) referred to. The Judgment of the Madras High Court affirmed.

JUDGMENT: CIVIL  APPELLATE JURISDICTION:Civil  Appeals Nos. 29 to  33, 89 and 90 of 1949. Appeals from the Judgment and Decree dated the 30th  October 1945 of the High Court of Judicature at Madras (Lionel Leach C.J.  and Rajamannar J.) in Appeals Nos. 230, 300-302,  355, 356 and 413 of 1943. G.S. Pathak (T. S. Santhanam, with him) for the appellant in Civil  Appeals Nos. 28 and 29 of 1949, respondent No.  1  in Civil Appeals Nos. 30, 32 and 33 of 1949 and respondent  No. 2  in Civil Appeal No. 31 of 1949, for respondent No.  3  in Civil Appeal No. 31 of 1949 and for respondents Nos. 1 and 2 in Civil Appeals Nos. 89 and 90 of 1949. V.V. Raghavan, for the appellant in Civil Appeals Nos. 31 to 33 of 1949, respondent No. 1 in Civil Appeals Nos. 28 and 29 of  1949  and  respondent No. 2 in Civil Appeal  No.  30  of 1949.B. Somayya (K. Subramaniam and Alladi Kuppuswami,  with him)  for the appellant in Civil Appeals Nos. 30, 89 and  90 of 1949, respondent No. 1 in Civil Appeal No. 31 of 1949 and respondent No. 2 in Civil Appeals Nos. 28, 29, 32 and 33  of 1949. 1951. December 14.  The Judgment of the Court was delivered by MAHAJAN J. 244     MAHAJAN  J.--These eight appeals arise out of  a  common judgment of the High Court of Madras dated the 30th October, 1945,  given  in seven appeals preferred to it  against  the judgment of the District Judge of Madura in four suits, O.S. Nos.  2,  5, 6 and 7 of 1941, all of which  related  to  the zamindari  of Bodinaickanur "in the Madura district and  the properties connected therewith.  The appeals were originally before  the Privy Council in England, some by leave  of  the High Court and others by special leave and are now before us for disposal.     The zamindari of Bodinaickanur is an ancient  impartible estate  in  the district of Madura, owned by a  Hindu  joint family.   The genealogical tree of the family is as  follows :-- 245                    Thirumalai Bodi Naicker                      Faisal Zamindar                           :                           :                    Rajaya Naicker(Died)                            :                            : (1)

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              Bangaru Thirumali Bodi               Naicker Zamindar 1849-1862(Died)                          :                          : -----------------------------------------------------------                  :                              :                  :                              : T. B. Kamaraja  Pandia Naicker              Vadamalai Raja Zamindar1962-1888(Died15-12-1888)           Pandia Naicker (Widow) Kamuluammal Zamindarini            (Died in 1901) 1888-1921(Died 13-1-1921)                  :                  :           Meenakshi Ammal (Died)                     :       ---------------------------------------------------             :               :                       :             :               :                       : Peria Thayi              Chainnathayi alias    Satpur alias Muthumeenakshi     Veeralakshmi Ammal    Zamindar Veerakamulu Ammal        (2nd Deft.) T.V.K. (3rd defendant)          Kamaraja pandia                          Naicker, late                           Zamindar (2)                     Viswanatha Naicker                      (Died before 1888)                            :                            :                 Kandasami Naicker plff in              O.S. 16 of 1889(Died 20-2-1901)                          :                          :   ------------------------------------------------------       :                            :       :                            : Viswanatha Kamaraja Pandia    T.V.K. Kamaraja (No.II) Naicker (Died on 29-7-1918)   Pandiaya Naicker (Died                               16-2-1941) Zamindar 1921-1941                                Widow Chinnathayi alias                               Veeralakshmi Ammal (2nd Deft.) (3)                    Sundara Pandia Naicker                       (Died in 1893)                             :                             : --------------------------------------------------------------   :                 :            :          :         :   :                 :            :          :         : Viswanathaswami  Thirumalai   Seelaraja    Seela  Kamaraja  Naicker         Muthu Vijaya   Naicker     Bodi    pandia   (died)         Dalapathi      Died on    Naicker   Naicker                  Pandia         25-9-1931)                  Naicker (Died)     :                                     :                                     :             ---------------------------------------------------                   :                             :                   :                             :        T.B.S.S. Rajaya Pandiya           Chokkalingaswami          Naicker (Plaintiff)               Naicker (4)                Kulasekara pandia Naicker(No.1)                (Died after 10-5-1889 but before 1902)                             :

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                           : -------------------------------------------           :                       :           :                       : Kulasekara pandiya         Muthu Bangaruswami Naicker (No. 2)                 Naicker (Died) (Died before 1902)      :                        :      :                        : V.Kulasekara pandiya   ------------------------------------ Naicker (1st Deft.)          :               :                              :               :                        Vadamalai Muthu   Thirumalai Bodaya                        Kulasekara         Sundararaja                        Pandiya Naicker    Pandiya Naicker (5)                    Chokkalingasami Naicker                     (Died after 10-5-1889                       but before 1902)                            :                            :                            : ----------------------------------------------------------------        :                :                   :        :                :                   : Tirumalai Bodaya     Chhokkalingasami    T.B. Kamaraja Sundararau Pandiya     Naicker (Died)     Pandiya Naicker Naicker (Died)       :       : ----------------------------------------------      :                        :      :                        : T.B.M.S.K. Pandiya        Pandiya Raja      Naicker                Naicker 246      The  zamindari  was  last held by Kamaraja  II  of  the second branch.  He died on 16th February, 1941, without male issue,  but leaving him surviving a widow Chinnathayi  alias Veeralakshmi  Ammal, and members of the family belonging  to the  third,  fourth and fifth branches.  Succession  to  the zamindari  is  admittedly  governed by the  rule  of  lineal primogeniture modified by a family custom according to which the younger son by the senior wife is preferred to an  eider son by junior  wife.  According   to  this   custom T.B.S.S. Rajaya  Pandiya Naicker of the third,branch was entitled  to the  zamindari after the death of Kamaraja II of the  second branch. His claim was denied by the widow and by  Kulasekara Pandiya  Naicker of the fourth branch, both of whom  claimed the  zamindari on different grounds. It was alleged  by  the widow  that  the zamindari was the  separate  and  exclusive property of her husband and that being so, she was  entitled to  it under the rule of Mitakshara applicable  to   devolu- tion   of   separate   property. Kulasekara  of  the  fourth branch claimed it on the basis that Sundata Pandiya  Naicker of the third branch who died in 1893, had separated from the family and had renounced his and his descendants’ rights  of succession  to  the zamindari and the third  ’branch  having thus lost all interest in the joint family zamindari, he was the next person entitled to it by survivorship.       On  28th April, 1941, the revenue officer allowed  the claim of Kulasekara and held that he was entitled to posses- sion of the zamindari and the pannai lands (home farm lands) which were in the possession of Kamaraja II. As regards  one of the villages comprised in the zamindari, viz.,  Boothipu-

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ram, the title of the widow was recognized. In pursuance  of this order, Kulasekara got into ,possession of the zamindari and the pannai lands after  the death of Kamaraja II.  Boot- hipuram  village  remained in the possession of  the  widow. Dissatisfied  with  the order of the  revenue  officer,  the parties have instituted the suits out of which these appeals arise. 247     On the 22nd June, 1941, the widow (Chinnathayi)  brought suit  No. 5 of 1941 for possession of the zamindari  against Kulasekara of the fourth branch, Rajaya and his uncle Seela- bodi Naicker of the third branch, T.B.M.S.K. Pandiya Naicker and  Kamaraja  Pandiya Naicker of the fifth branch,  on  the allegations set out, above.     On  the  4th July, 1941, she and her  sister  instituted suit  No. 2 of 1941 against the same set of  defendants  for cancellation  of the deed of release that had been  executed by  her and her sister in favour of Kamaraja II on  the  9th June, 1934, in respect of the pannai lands that were in  the possession  of  Kulasekara of the fourth  branch  under  the order of the revenue officer.     The  third  suit,  O.S. No. 6 of 1941,  was  brought  by Rajaya of the third branch on 27th August, 1941, for posses- sion  of the zamindari, Boothipuram village and  the  pannai lands,  against Kulasekara of the fourth branch and the  two plaintiffs  in  suit No. 2 of 1941, on the  allegation  that under  the  rule of lineal promogeniture he was  the  person next entitled to succeed to the zamindari after the death of Kamaraja II.      The  last suit, O.S. No. 7 of 1941, was  instituted  by Kulasekara  of  the  fourth branch on  13th  October,  1941, against  the  widow and Rajaya, his rival claimants  to  the zamindari  for a declaration that he was the  rightful  heir and  successor to the zamindari and was entitled to  posses- sion  of Boothipuram village registered in the name  of  the widow.      The  zamindari of Bodinaickanur orginally consisted  of fifteen villages mentioned in schedule (A) to the plaint  in O.S.  No. 6 of 1941 and of certain pannai  (home  farm)lands and  buildings.   Tirumalai Bodi Naicker was the  holder  of this  impartible  raj. He was succeeded by  his  son  Rajaya Naicker  who died in 1849, leaving him surviving five  sons, Bangaru Tirumalai Bodi Naicker, Viswanatha Naicker,  Sundara Pandiya. Naicker, Kulasekara Pandiya Naicker and  Chokkalin- gaswami  Naicker,  representing the  first,  second,  third, fourth and fifth branches respectively.  Rajaya 248 Naicker was succeeded by his eldest ’son Bangaru  Thirumalai Bodi  Naicker  who died on the 27th October, 1862,  and  was succeeded by his son. T.B. Kamaraja Pandiya Naicker (Kamara- ja I) who remained as zamindar till his death on 15th Decem- ber. 1888. He had no son and on his death his widow  Kamulu- ammal  got  into possession of the estate.  Proceedings  for transfer were taken in the revenue court for registry of the zamindari  and statements of the male members of the  family belonging  to the second, third, fourth and  fifth  branches and of the widow were recorded by the Deputy Collector.   On 18th  December, 1888, the representatives of these  branches stated  that they had no objection to  Kamuluammal  enjoying the  zamindari.  On the 19th Kamuluammal asserted  that  her husband by his will had bequeathed the zamindari to her  and had  given her permission to make an adoption. On  the  same date the representatives of all branches of the family  made a joint statement before the Deputy Collector. The  relevant portion of it is in these terms :--

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   "We  four  persons are his heirs to succeed and  yet  we agree to his widow Kamuluammal taking and enjoying the above said zamin and all other properties save the  undermentioned lands  set  apart  for our maintenance.   Remission  of  the tirwah of the said lands allowed to us and of the tirwah  of the  lands  registered in our names and  enjoyed  till  now, should be granted to us."      544 kulies of pannai lands under the Bangaruswami  tank and the Marimoor tank were earmarked for the maintenance  of the  four branches. The widow made a statement on  20th  ac- cepting  this arrangement.  The Deputy  Collector  submitted his  report  on the 5th of January, 1889, to  the  Collector upholding the will. The Collector in his turn also  recorded the statements of the representatives of the several branch- es  of the family.  Persons representing the  third,  fourth and  fifth branches adhered to the previous statements  made by them but Kandasami of the second branch resiled from  his earlier statement and asserted that the 249 family being divided he was the next heir to the  zamindari. No  notice was taken in these proceedings of Vadamalai,  the half-brother  of  Kamaraja  I  Sundara  Pandiya’s  statement before the Collector on the 9th January, 1889, was in  these terms :-     "The  wish of the family is that the widow should be  in charge of the estate.  I know nothing about the    execution of  the will.  After the death of the widow, the  next  heir should  succeed.  He is Kandaswami, son  of  Viswanathaswami Naicker, my eldest brother, deceased.’’     To the same effect were the statements of Kulasekara  of the  fourth  branch  and of Chokkalingaswami  of  the  fifth branch.   Kandaswami’s  statement was recorded on  the  14th January, 1889, and he said as follows :--     "I  am  the  next heir to the zamin,  the  family  being undivided.  I must get it."     He  repudiated his earlier statement on the ground  that at that time he was ill and was drowned in sorrow and  "some rogue  imitated  his signature" and put it on  his  previous statement. The revenue Officer ordered that the widow’s name be  registered as the next person entitled to the  zamindari subject to any order that the civil court might make in  the case.     On  the  1st May, 1889, Kandasami filed O. S No.  16  of 1889  in  the court of the Subordinate Judge of  Madura  im- pleading  the  widow  and the Collector  as  defendants  for recovery of the entire zamindari as it then existed, includ- ing  the  villages  of Boothipuram and  Dombacheri  and  the pannai lands.     He  alleged that he as a member of the  undivided  Hindu family was entitled to succeed to the zamindari by survivor- ship and in accordance with the established rule  applicable to  the  devolution of this zamindari.  Kamuluammal   denied this claim and asserted that the zamindari was the  separate property of her husband and she was entitled to it in  pref- erence  to  her husband’s collaterals.  She also  based  her claim  on the alleged will of her husband.  Sundara  Pandiya of  the third branch  laid  a  claim  to the  zamindari  and the 33 250 pannai lands on the ground that he as senior in age  amongst the  family  members was entitled to them in  preference  to Rajaya  on the rule of simple primogeniture. In view of  the pending  and  threatened litigation the  contesting  parties thought it fit to end their disputes by a mutual  settlement

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beneficial to all of them. Sundara Pandiya was the first  to strike  a bargain with the widow.  On the 6th May,  1890,  a deed of release (Exhibit P-17) was executed by him in favour of  Kamuluammal incorporating the terms  of  the  agreement. He  managed to get from her in consideration of the  release the  village  of Dombacheri absolutely for himself  and  his heirs. She bound herself to pay the peishkush and road  cess of  the said village without any concern about that  on  the part   of   Sundara Pandiya.  He was also allowed  to  enjoy free  of  rent from generation to generation with  power  of alienation  by way of gift, sale, etc. the one-fourth  share in the pannai lands under the irrigation of the Bangaruswami tank and the Marimoor tank and mentioned in the joint state- ment  made by the several branches of the family before  the Deputy  Collector in December 1888. Over and above this,  he received a cash payment of Rs. 3,000. With the exception  of Dombacheri  village and of the one-fourth share in the  said pannai  lands,  all the other properties which  belonged  to Kamaraja  I were to be held  and enjoyed with all rights  by Kamuluammal  and  her  heirs with the  power  of  alienation thereof  by  way of gift, sale etc. absolutely.  The  fourth clause of the release is in these terms :-     "Whatever  rights over the said zamin properties and  in all  the other above mentioned properties, the said  Sundara Pandiya  Naicker  Avargal might possess, he  gives  up  such rights absolutely in favour of the said Kamuluammal  Avargal and her heirs enabling them to enjoy them with the power  of alienation  thereof by way of gift, sale, etc. and  whatever rights the said Kamuluammal might possess over the  Dombach- eri village and over the lands lying under the irrigation of the Bangarusami tank and the Marimoor tank and specified  in the third column of the schedule hereto, 251 which are given up to the aforesaid Sundarn Pandiya  Naicker Avargal,  the said Kamuluammal Avargal hereby gives up  such rights  absolutely  in favour of the  said  Pandiya  Naicker Avargal and his heirs, enabling them to enjoy them with  the power  of  alienation  thereof by way of  gift,  sale  etc." Clause 5 runs thus :--       "The  said  Kamuluammal and her heirs  shall  have  no claim at all to the properties shown as belonging to Sundara Pandiya  Naicker Avargal as aforesaid and the  said  Sundarn Pandiya Naicker Avargal and his heirs shall have no claim at all  to the properties shown as belonging to the said  Kamu- luammal Avargal."     This  deed was presented for registration on  10th  May, 1890. On the same day O.S. No. 16 of 1889, i.e., Kandasami’s suit,  was also compromised Exhibit P-18 contains the  terms of  that compromise. The following are its important  provi- sions :-     (a)  The zamindari shall be enjoyed by Kamuluammal  till her  lifetime and she shall have no right to mortgage  those properties in any way prejudicial to the plaintiff.     (b) Kandasami and his heirs shall after the lifetime  of Kamuluammal,  enjoy the zamindari excepting Dombacheri  vil- lage together with such rights if any as the first defendant Kamuluammal  may  have acquired under the  deed  of  release executed between her and Sundarn Pandiya.     (c) Boothipuram village shall be given to the  plaintiff by  Kamuluarnmal  so  that she may enjoy  it  with  absolute rights.   The  entire peishkush and the road  cess  for  the entire zamindari inclusive of the said village shall be paid by Kamuluammal.     (d) The one-fourth share in pannai lands situated on the irrigation  areas  of Bangaruswami tank  and  Marimoor  tank

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shall be enjoyed by Kandaswami and his heirs with powers  of alienation and with absolute rights.     (e)  Rs. a5,000 shall be paid to Kandasami by  Kamuluam- mal. 252      (f) All the other pannai lands, buildings  and movables which  belonged  to the deceased  Kamaraja  Pandiya  Naicker shall be held and enjoyed by Kamuluammal and her heirs  with powers of alienation etc. and with absolute rights free from any future claim on the part of Kandaswami and his heirs.      (g)  The movable and immovable properties which may  be acquired  by Kamuluammal from out of the income of  the  za- mindari  shall belong to her with power of  alienation  etc. and shall go to her own heirs after her lifetime.     (h)  Kamuluammal  shall  not make an  adoption.  By  the proceedings  taken before the Collector and by the  arrange- ment  made under Exhibits P-17 and P-18, the  disputes  that had  then arisen in the family were  settled.   Kamuluammal, however,  did not with good grace part with  the  properties which  she had agreed to give to others under  the  arrange- ment.   The  terms  of the compromise  had  to  be  enforced against her by a number of suits and actions one by one.  Be that  as it may, it is not denied now that  the  arrangement arrived  at  was eventually acted upon.  Kandasami  and  his sons  enjoyed the Boothipuram village and one-fourth of  the pannai  lands in the two tanks absolutely.  Sundara  Pandiya and  his descendants enjoyed Dombacheri and one-fourth  pan- nailands, the fourth and fifth branches obtained  possession of  one-fourth  share  of the pannai lands  under  the   two tanks. Kamuluammal secured revenue registration and remained in possession of the property down to the date of her  death on  lath  January,  1921.  On her death  the  estate  became vested  in  the  possession of Kamaraja II,  the  sole  male representative  of the second branch, his  father  Kandasami and his brother Viswanathaswami having predeceased Kamuluam- mal.  He had been married to Chinnathayi (Veeralakshmi)  one of the grand-daughters of Kamuluammal during her lifetime.       In  the year 1925, the zamindar of Saptur, the son  of Kamulu’s deceased daughter Meenakshi, instituted 253 O.S.  No.  7 of 1925 against his  sisters,  Chinnathayi  and Periathayi,  and  Kamaraja II, for recovery  of  the  pannai lands  and buildings which had vested absolutely  in  Kamulu under  the compromise decree, on the allegation  that  these were  held  by her as a widow’s estate and that  he  as  the daughter’s  son was entitled to succeed to them.   The  suit was resisted by the two sisters on the plea that these lands were stridhanam properties of Kamulu and they as  stridhanam heirs were entitled to them in preference to their  brother. Kamaraja  II contended that he was entitled to  these  lands and buildings as they formed an integral part of the zamind- ari  and were treated as such by Kamulu. This suit was  dis- missed  and the plea of the two sisters was upheld.  On  9th June,  1934,  both  of them executed a deed  of  release  in favour of Kamaraja II whereby they conceded his claim to the pannai  lands and the buildings as being appurtenant to  the zamindari  in consideration of his agreeing to pay  Rs.  300 per mensem for life to each of them.     On the death of Kamaraja II on the 16th February,  1941, as  already stated, the second branch of the  family  became extinct,  and disputes arose in regard to the succession  to the zamindari, pannai lands, buildings etc. and the  village of  Boothipuram. As above stated, the claimants to  the  za- mindari  are  three in number, Rajaya of the  third  branch, Kulasekara  of  the  fourth branch,  and  Chinnathayi  alias

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Veeralakshmi, the widow of the late zamindar.   The District Court  and on appeal the High Court have  concurrently  held that  Rajaya was the person entitled to the  zamindari.  The District Court further held that the village of  Boothipuram continued  to be part of the zamin and decreed the  same  to the  plaintiff Rajaya. As regards the pannai lands,  it  was held that these had been conveyed absolutely to Kamulu under Exhibit  P-18 and that her daughter’s daughters,  Periathayi and  Chinnathayi.  succeeded to the same as  her  stridhanam heirs and that the release deed executed by them on the  9th June,  1934, was invalid and inoperative to convey  a  valid title to Kamaraja 11.  On appeal the High Court 254 confirmed the findings of the District Court as regards  the pannai  lands  and buildings but reversed  its  findings  as regards  succession to Boothipuram.  It held that  Kandasami obtained  Boothipuram village as his  selfacquired  property and that Chinnathayi was entitled to succeed to the same  on the demise of her husband Kamaraja II.  The various sets  of parties  have preferred the above appeals against the  deci- sion of the High Court to the extent it goes against them.     The  points for determination in these appeals  are  the following :---     1.  Who  out of the three claimants is entitled  to  the zamindari.     2. Whether Boothipuram village is still an integral part of the zamindari or did it become the self-acquired property of Kandasami by the compromise, Exhibit P-18.     3.  Whether the pannai lands and buildings are  part  of the zamindari or became the stridhanam of Kamuluammal by the compromise decree and did not merge in the zamindari by  the release deed of 1934.     The question relating to the pannai lands and  buildings can be shortly disposed of. Both the courts below have  held that under the arrangement arrived at amongst the members of this family in the year 1890 these lands became the stridha- nam  of Kamuluammal and passed on to her  stridhanam  heirs, i.e.,  her  granddaughters Chinnathayi and  Periathayi,  and that  the  deed of release executed by the  two  sisters  in favour  of  Kamaraja II was vitiated by fraud  and  was  not binding  on Chinnathayi and the other heirs.   This  finding could  not be  seriously  disputed by Mr. Somayya  appearing for  Rajaya or by Mr. Raghavan appearing for Kulasekara.  It was faintly argued that the pannai lands were left with  the widow in the same status in which she was allowed to  retain the  zamindari.  This contention is contrary  to  the  clear recitals of the compromise deed.  Kamuluammal was a forceful personality and it seems clear that she agreed to accept the title of Kandasami as next entitled to the 255 estate  and  to  give up her contention based  on  the  will because  she  was given the zamindari for her  lifetime  and these  pannai lands and buildings  absolutely. Kandasami  in whom  the inheritance had vested was competent, in  view  of the  decision in Sartaj Kuari’s case(1), to  alienate  these lands  in her favour and to vest her with absolute  interest in  them.  It has therefore been rightly  held  that  Kamulu became  the absolute owner of the lands which in due  course devolved on her grand-daughters and ceased to be part of the joint family estate.  Moreover, it does not lie in the mouth of Sundarn Pandiya’s descendants to challenge  Kamuluammal’s absolute title to these lands while retaining absolute title in  the village of Dombacheri which under the same  arrange- ment  Sundarn Pandiya got absolutely with rights of  aliena- tion.   It was conceded that to the family  arrangement  ar-

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rived  at in the year 1890 and evidenced by  the  statements made  before  the Collector, the recitals contained  in  the release deed, Exhibit P-17, and those made in the compromise deed,  Exhibit  P-18,  all the members of  the  family  were either  parties or they accepted it and acted upon  it.  The result  is  that the widow Chinnathayi is  entitled  to  the possession of those lands and no other person has any  right to them whatever.      As  regards Boothipuram village, the point is a  simple one.  Under the  compromise, Exhibit P-18, this village  was left with Kandasami, the person next entitled to the zamind- ari after the death of Kamaraja I. It was separated from the zamindari  estate which remained m possession and  enjoyment of Kamuluammal for her lifetime. It was said in the  compro- mise  that  Kandasami would be the absolute  owner  of  this village. It was argued by Mr. Somayya, and the same was  the view  taken  by the trial Judge, that  Kandasami  being  the holder of an impartible estate could not by his own  unilat- eral  act enlarge his estate and take a part of this  estate in  a different right than the right of a holder of  an  im- partible  zamindari and that he could not make  it  separate property by his own act. (1) (1888) 15 I.A. 51. 256 The  High  Court did not accept this view  but  reached  the decision  that  all  the branches of the  family  agreed  to Kandasami  having this village as his private  property  and that by common consent it was taken out of the zamindari and given  to him absolutely and it was thus impressed with  the character  of separate  property.  On Kandasami’s  death  it devolved  on his son by succession and not  by  survivorship and  Chinnathayi has a widow’s estate in it after the  death of her husband.  In the High Court it was conceded that  all the  members  of the family were aware of the terms  of  the family  arrangement and were bound by them. In view of  this concession it seems to us that it is not open to any of  the parties to these appeals to  deny at this stage the right of the  widow to this village as an heir to her  husband’s  es- tate.        The main fight in all these appeals centres round the title  and  heirship to the zamindari.   The  question  four determination  is,  whether the zamindari  by  some  process became  the separate property of Kandasami and that  of  his son  Kamaraja  II.  If it became the  separate  property  of Kamaraja II, then Chinnathayi,  his widow, would succeed  to it  on  his death; on the other hand, if the  zamindari  re- tained  its character of joint family property in the  hands of Kamaraja II, then the question to decide is whether as  a result  of  the arrangement made in 1890   Sundarn   Pandiya relinquished his right to succeed to the family zamindari on the  failure  of nearest male heirs of  Kandasami.  If  such relinquishment  on  his part is held  satisfactorily  estab- lished, then Kulasekara of the fourth branch would be  enti- tled  to succeed to the zamindari; otherwise Rajaya of  Sun- darn Pandiya’s branch alone is entitled to it under the rule of succession applicable to the devolution of the zamindari.    The claim made by the widow that the zamindari became  by the  arrangement of 1890 the separate property of  Kandasami was  disallowed by the High Court on the short  ground  that the  documents, Exhibits P-17 and P-18, read along with  the various  statements made in 1889 cannot be read as  changing the character 257 of the estate from that of an impartible estate belonging to the  joint  family to an estate owned by  Kandasami  in  his

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individual  right.  In the view of the High Court  the  only change effected by the arrangement so far as the estate  was concerned was to defer the right of Kandasami to its posses- sion  as  the next in succession until after  the  death  of Kamuluammal.   Kandasami could not himself make it  his  own private property and this was conceded by all.  After  hear- ing  Mr. Pathak at considerable length we are  in  agreement with the High Court on this point.     Mr.  Pathak  argued  that on the  true  construction  of Exhibits  P-17  and P-18 and on the  evidence  furnished  by these  two documents and the statements made  antecedent  to their  execution and also in view of the subsequent  conduct of  the parties, the correct inference to draw was that  all the  five branches of the family separated in the year  1890 and  thus  put an end to the joint family character  of  the zamindari  that Kandasami was allotted the zamindary,  Boot- hipuram  village and one-fourth pannai lands under  the  two tanks,  Sundara Pandiya was allotted Dombacheri village  and one-fourth of the pannai lands and that the fourth and fifth branches in lieu of their share were assigned one-fourth  of the pannai lands irrigated by the two tanks mentioned  above and  by  these allotments the joint  family  was  completely disrupted  and  the  properties allotted  to  the  different branches became their separate properties.     Reference was made to the decisions of the Privy Council in  Vadreun  Ranganayakamma v.  Vadrevu Bulli  Ramaiya  (1); Sivagnana  Tevar v. Periasami(2); Thakurani  Tara Kumari  v. Chaturbhuj Narayan Singh (3); and it was contended that  the present  case was analogous to the facts of those cases  and should  be decided on similar lines. We are of  the  opinion that the facts of none of those cases bear any close  resem- blance to the facts of the present case.  The decision in  (1) (1880) 5 C.L.R. 439.       (3) (1915) 42 I.A. 192, (2) (1877) 5 I.A. 51.  34 258 each one of those cases was given on their own peculiar  set of  circumstances. In  the  first  case the owner of  an  impartible  zamindari forming  part of family property died leaving four sons  and an  infant grandson by his eldest son.  During the  minority of  the  grandson the four surviving sons executed  a  sanad which   directed  that the zamindari should be held  by  the grandson and that they should take  an  equal share  of  the inam lands and also manage the  zamindari during the infancy of the  grandson,  which on his attaining majority had to be handed  over to him, each confining himself to the share  of the  inam lands allotted to them.  Certain family  jewellery was  also  divided in a similar manner. This  grandson  then died  leaving  a son, who also died without  any  issue  but leaving  a widow.  Her title to the zamindari was denied  by the  descendants of the four sons of the zamindar.   It  was held  that the sanad amounted to an agreement by  which  the joint  family was divided and that on the death of the  last holder  his  widow was entitled to the  zamindari.   It  was observed in this case that having partitioned the lands, the parties  to the sanad proceeded to partition the jewels  and this circumstance was inconsistent with the supposition that the  document  was  executed with the  intention  of  merely providing  allotments  in lieu of maintenance. It  is  clear from  the  facts of this case that the  family  owned  other coparcenary properties besides the zamindari and the zamind- ari in dispute fell to the lot of the grandson as his  sepa- rate  property.   There  were other materials  in  the  case indicating  that there was complete separation  between  the

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members of this family.      In the next case an impartible zamindari  had  devolved on  the eldest of three undivided  Hindu brothers.  He  exe- cuted  an  instrument appointing his second  brother  to  be zamindar.   The instrument recited that if the widow of  the deceased who was pregnant did not give birth to a son but  a daughter, he and his offspring would have no interest in the zamindari of 259 which  his  younger brother would be the sole  zamindar  who would  also  allow maintenance to  the  third  brother.  The widow  gave birth to a daughter and the second brother  took over  the  zamindari.  The third brother also  died  without issue.  On the death of the second brother his son succeeded and the zamindari devolved on him who died leaving a  widow. The son of the eldest brother who had renounced the  zamind- ari  sued to recover the estate against the widow.   It  was held that the instrument executed by the  eldest brother was a renunciation by him for himself and his descendants of all interests in the zamindari either as the head or as a junior member  of the joint family and consequently it  became  the separate  property of the second brother and the  widow  was entitled  to succeed to it in preference to the line of  the eldest brother. The document on the interpretation of  which this decision was given was in these terms :--     "I  and my offspring shall have no interest in the  said palayapat, but you alone shall be the zamindar and rule  and enjoy  the same, allowing, at the same time, as  per  former agreement   to   the  younger  brother,   P.   Bodhagurusami Tevar,--who  in  the pedigree is  called  Chinnasami,  --the village that had been assigned to him before."     These words were interpreted as amounting to a renuncia- tion of all interest in the palayapat either as the head  of or as a junior member of the joint family. The rights of the youngest brother Chinnasami were expressly reserved.  It was said  that  the effect of the transaction was  to  make  the particular  estate  the property of the two instead  of  the three  brothers, with, of course, all its incidents  of  im- partibility and peculiar course of the descent, and to do so as  effectually as if in the case of an  ordinary  partition between the eider brother on the one hand and the two young- er  brothers on the other, a particular property had  fallen to the lot of the other two.  Other clauses in the deed  and the attending circumstances fully corroborated the construc- tion placed upon it. 260      In the last case the holder of an impartible estate  of a  joint Hindu family made a mokurari grant to  his  younger brother  for  maintenance.   The grantee  built  a  separate house,  divided  from his brother’s by a  wall,  established therein a tulsi pinda and thakurbari, and lived there  sepa- rately from his brother.  He derrayed the marriage  expenses of his daughter subsequently to the grant.  Upon these facts it was held that there was a complete separation between the brothers, and that the impartible estate consequently became separate property of the holder whose widow was entitled  to succeed  and have a widow’s estate in the zamindari. It  was observed  that  the evidence clearly proved that  there  had been  complete  separation  between  Thakur  Ranjit  Narayan Singh  and  his  brother  Bhupat Narayan Singh  in  worship, food and estate.  In our opinion, the decision in this  case must be limited to the facts therein disclosed and can  have no general application to cases of impartible estates  where the  only right left to the junior members of the family  is the  right  to take the estate by survivorship  in  case  of

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failure  of lineal heirs in the line of the last  zamindari. The  junior  members  can neither demand  partition  of  the estate nor can they claim maintenance as of right except  on the strength of custom, nor are they entitled to  possession or enjoyment of the estate.    In  our  opinion, division amongst the  members  of  this family  by allotment of properties was not possible  as  the only property known to belong to the family was the imparti- ble  zamindari of which partition could not be made  or  de- manded.   To establish that an impartible estate has  ceased to be joint family property for purposes of succession it is necessary to prove an intention, express or implied, on  the part  of the junior members of the family to give  up  their chance  of  succeeding to the estate.  In each case,  it  is incumbent  on the plaintiff to adduce  satisfactory  grounds for  holding  that the joint ownership  of  the  defendant’s branch  in the estate was determined so that it  became  the separate property of the  last holder’s branch.  The test to be applied is whether the 261 facts  show a clear intention to renounce or  surrender  any interest in the impartible estate or a relinquishment of the right  of  succession and an intention to impress  upon  the zamindari the character of separate property.     Reference in this connection may be made to the decision of   the   Privy  Council in Konammal v. Annadana  (1).   In that  case  on the death  of  a holder,   his    eider   son being   feeble   in  mind, his  younger   son  succeeded  to the  zamindari by an arrangement with the adult  members  of the family in the year 1922.  The estate then descended from father  to son till 1914 when the junior branch  became  ex- tinct  and  possession was taken by a senior member  of  the branch  who claimed it by survivorship; while the mother  of the  last holder claimed the estate as an heir  to  separate property,  and  it was held that the setting  aside  of  the eider  son in 1822 did not deprive his descendants of  their rights as members of the family to succeed on failure of the junior  branch.  In this  case there  was  complete  passing over of one branch of the family to succession vested in the next  junior branch;  yet when that branch failed, the  mem- bers  of  the senior branch were held yet to  possess  their right to succeed to the zamindari by survivorship.     In  Collector  of Gorakhpur v. Ram  Sundar  Mal(1),  the claim of a Hindu to succeed by survivorship to an  ancestral impartible  estate  was  in issue in the  suit.  The  family admittedly  had  been joint.  It appeared  that  the  common ancestor  of  the deceased holder and of  the  claimant  had lived  200  years before the suit, that for  a  long  period there  had been a complete separation in worship,  food  and social  intercourse  between the claimant’s  branch  of  the family  and that of the deceased holder, and that  upon  the death  of the holder the claimant had not disputed that  the widow of the deceased was entitled to succeed.  It was  held that there was not to be implied from the circumstances (1)  (1928)  55 I.A. 114.   (2) (1934) I.L.R.  56  All.  468 (P.C.). 262 stated  above a renunuciation of the right to succeed so  as to  terminate  the  joint status for the  purposes  of  that right.     In Sri  Raja Lakshmi Devi Garu v.  Sri Raja Surya  Nara- yana  Dhatrazu  Bahadur  Garu (1), the  last  zamindar  died without any issue in 1888, and when his widow was in posses- sion, the suit was brought for possession by a male  collat- eral descended from a great grandfather common to him and to

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the  last zamindar. The plaintiff claimed to  establish  his right  as  a  member of an undivided  family  holding  joint property against the widow who alleged that her husband  had been  the  sole proprietor. In proof of this she  relied  on certain arrangements as having constituted partition,  viz., that  in  1816, two brothers, then heirs,  agreed  that  the eider  should hold possession, and that the  younger  should accept  a  village, appropriated to him for  maintenance  in satisfaction  of his claim to inherit; again, that in  1866, the  fourth zamindar compromised a suit brought against  him by  his sister for her inheritance, on payment of a  stipend to her  having already, in the claim of his brother, granted to  him two villages of the estate; and by  the  compromise, this  was made conditional on the sister’s claim being  set- tled;  again, that in 1871, the fourth zamindar having  died pending a suit brought against him to establish the fact  of an adoption by him, an arrangement was made for the  mainte- nance of his daughter, and two widows, who survived him, the previous grant for maintenance of his brother holding  good, the  adoption being admitted, and the suit compromised.   It was held that there was nothing in the arrangement which was inconsistent with the zamindari remaining part of the common family  property and that the course of the inheritance  had not been altered.  The facts of this case were much stronger than those of the present one. The mere circumstance that by an  arrangement a village out of the zamindari was given  to one of the brothers was not inconsistent with the  zamindari remaining part of the common family property. (1) (1897)I.L.R. 20 Mad. 256 (P.C.). 263 The  document executed by the brother in the  reported  case was in these terms :-     "I  or  my heirs shall not at any time make  any  claims against you or your heirs in respect of property movable  or immovable,  or in respect of any transaction. As our  father put you in possession of the Belgam zamindari, I or my heirs shall  not  make  any claim against you  or  your  heirs  in respect of the said zamindari."     It  was  observed by their Lordships that they  did  not find  any  sufficient evidence in the  arrangement  made  by these  documents of an intention to take the estate  out  of the  category  of joint or common family property so  as  to make it decendible otherwise than according to the rules  of law  applicable to such property, that the  arrangement  was quite consistent with the continuance of that legal  charac- ter of the property, that the eider brother was to enjoy the possession  of  the family estate, and the  younger  brother accepted the appropriated village for maintenance in  satis- faction  of such rights as he conceived he was  entitled  to and  that it was nothing more in substance than an  arrange- ment for the mode of enjoyment of the family property  which did not alter the course of descent.     The  evidence in the present case is trivial and  incon- clusive and from the documents above mentioned no  intention can  be deduced on the part of the junior members or on  the part  of  any other member of the family of  disrupting  and dividing  the  family  and renouncing  their  expectancy  of succession.  On the other hand, the statements made in  1880 and 1800 by the members of the family clearly indicate  that none  of them had any intention of giving up his  rights  of heirship to the zamindari. There was no change of this frame of  mind  at  any later stage  of  the  family  arrangement. Sundara  Pandiya  on the 9th January, 1889,  clearly  stated that the wish of the family was that the widow should be  in charge  of  the estate and after her the  next  heir  should

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succeed  and that it was Kandasami.  Kandasami said that  he was the next 264 heir,  the family being undivided.  In the  compromise  this statement  was reiterated.  Their intention was to  preserve their rights to take the zamindari if the line of  Kandasami became extinct.      Mr. Pathak then put his ease from a different point  of view.   He urged that Kandasami had the power  to   alienate ’the zamindari or any part of it and by an act of alienation he  could  defeat the right of survivorship vesting  in  the other  members   to claim the zamindari on  failure  of  his line.   Similarly  he said he could  divide  the  impartible estate amongst the different members of the family and  that is  what  he must be presumed to have done  in  the  present ’case.  The argument, though plausible, is fallacious.   The right  to  bring about a partition of an  impartible  estate cannot  be  inferred from the power of alienation  that  the holder  thereof may possess.  In the case of  an  impartible estate  the power to divide it amongst the members does  not exist,  though  the power in the holder to  alienate  it  is there  and from the existence of one power the other  cannot be  deduced,  as it is destructive of the  very  nature  and character  of  the  estate and makes  it  partible  property capable of partition.      It  seems to us that Kandasami instead of intending  to separate  from the family was by his  actions  consolidating the  family  unity.  By the family arrangement he  no  doubt successfully  got himself declared as the next person  enti- tled  to hold the joint family zamindari, but he evinced  no intention  of converting it into his own separate  property: He preserved the estate for the family by saving it from the attack of the widow who wanted to take it under the will  of her husband and antagonistically to the family.  By the suit which  he  brought and which was eventually  compromised  he successfully avoided that attack on the family estate at the sacrifice of his right of enjoying it during the lifetime of the widow.  He also by this arrangement safeguarded  himself against  the  attack of Sundara Pandiya on his title  as  an heir.   By his act the rule of descent of lineal  primogeni- ture  prevailing in the family with regard to the  zamindari was firmly 265 established. It would be unjust and uncharitable to conclude from the circumstances that the actions of Kandasami in 1890 were in any way hostile to the interests of the family.   As he was  throughout acting for the benefit of the family  his actions  were  approved by all the members and  they  got  a provision  made for themselves for their maintenance in  the arrangement.  In the suit that he filed against  Kamuluammal he  in  unambiguous terms alleged that he was  claiming  the zamindari  as a member of the undivided Hindu family and  it was in that status that he made the compromise with her  and agreed to obtain possession of the estate after her death.     After  Kandasami’s  death’ when the  zamindari  came  by descent to Kamaraja II, he also followed in the footsteps of his  ancestor.  During the period of his stewardship of  the estate  he  tried to implement it by recovering  the  pannai lands which under the compromise had gone out of the  estate to  Kamulu  absolutely.  He was successful  in  his  efforts though  as a result of the decision in the present case  his labours in this direction have proved futile as the  release deed has been held to be vitiated by fraud.     For the reasons given above we hold that there exist  no satisfactory  grounds for holding that the arrangement  made

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in   1890 evidences a partition amongst the members  of  the joint  family  or  proves an intention on the  part  of  the junior members of the family to renounce their expectancy of succession  by  survivorship on failure of male  lineal  de- scendants  in the second branch of the family. The  question whether there was separation among the members of the family is primarily a question of fact and the courts below  having held  that it is not proved, there are no valid grounds  for disturbing  that finding. Chinnathayi’s claim  therefore  to the zamindari must be held to have been rightly disallowed.     As regards the claim of Kulasekara to the zamindari,  it has  been disallowed in the two courts below on  the  ground that the deed of release, Exhibit P-17, 35 266 does  not extinguish the right of survivorship of the  third branch  to  take the estate on the  second  branch  becoming extinct and that the document could not be read as  evidenc- ing an intention on the part of Sundara Pandiva to surrender the  right of succession of his branch. It has been  further held  that the release was   not executed in favour  of  the head of the family or in   "favour of all the members of the family  in order to be operative as a valid  relinquishment. There can be no doubt that a member of a joint family owning an impartible estate can on behalf of himself and his  heirs renounce  his right of succession; but any such  relinquish- ment must operate for the benefit of all the members and the surrender  must  be  in favour of all the  branches  of  the family, or in favour of the head of the family as represent- ing  all its members.  Here the deed was executed in  favour of  the  widow of a deceased copgrcener who as  such  was  a stranger  to  the coparcenary, the family  being  admittedly joint at the death of Kamaraja I.  It was contended that  in view  of the attitude taken by the parties before  the  High Court that the deed of release and the compromise  evidenced only one arrangement to which all the members were in reali- ty  parties  it  should be held that the  surrender  of  his rights  by Sundara Pandiya was made in favour of  Kandasami, the  head of the family, and it extinguished the  rights  of the third branch in the family zamindari.  We think,  howev- er,  that  Kandasami  in dealing with  Sundara  Pandiya  was safeguarding his own right of succession against the  attack personally directed against him and was successful in buying him off by agreeing to hand over to him a village.  Both  of them  were  claiming  headship of the  family  on  different grounds and both were asserting that the zamindari  belonged to the joint family.  In the compromise Kandasami was acting for  his  own benefit and was not making  any  bargain  with Sundara Pandiya on behalf of the family. The family as  such could  not  have been prejudiced in any way by  the  circum- stance that succession went to one or the other. Be that  as it may, we think the decision 267 of this case can be made to rest on a more solid  foundation than furnished by the considerations set out above.     The  whole  emphasis  of  Mr. Raghavan  who  represented Kulasekara  was   on the words of the  deed   contained   in clause  5  set  out  above. Sundara Pandiya by  this  clause stipulated that he will have no right to the property  shown as belonging to the widow. Sundara Pandiya was then agreeing that  the widow should retain the zamindari absolutely,  his mind being affected by the will.  Later on by the compromise made  in Kandasami’s suit what had been given absolutely  to the  widow was converted into a life estate with the  excep- tion  of the pannai lands and Kandasami was acknowledged  as

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the  rightful heir. The recitals in the release deed  there- fore  have to be read in the light of the terms  and  condi- tions  of  the deed of compromise and the  proper  inference from  these is that Sundara Pandiya relinquished his  rights to  succeed to the zamindari immediately as  the  seniormost member  of the family but that he did not renounce his  con- tingent  right  of succeeding to it by survivorship  if  and when  the occasion arose.  It is well settled  that  general words of a release do not mean release of rights other  than those  then  put up and have to be limited  to  the  circum- stances which were in the contemplation of the parties  when it was executed: vide Directors etc. of L. & S.W. Ry. Co. v. Richard  Doddridge Blackmore (1).  In that case it was  said that general words in a release are limited to those  things which  were  specially in the contemplation of  the  parties when  the  release was executed.  This rule is good  law  in India  as  in England.  The same rule has  been  stated   in Norton  on  Deeds  at page 206 (2nd Ed.) thus :--     "The  general words of a release are limited  always  to that  thing or those things which were specially in     con- templation  of the parties at the time when the release  was given, though they were not mentioned in the recitals." (1) L.R. 4 H.L. 610. 268     In  Hailsham’s  Edition  of Halsbury’s Laws of  England, Vol. 7, at para 345 the rule has been stated in these  terms :--       "General words of release will be construed with refer- ence  to  the surrounding circumstances and  as  being  con- trolled by recitals and context so as to give effect to  the object  and purpose of the document.  A release will not  be construed as applying to facts of which the creditor had  no knowledge at the time when it was given."      In   Chowdhry   Chintaman  Singh   v.   Mst.   Nowlukho Kunwari(1),  where the document  was drafted in  almost  the same  terms  as Exhibit P-17, it was said  that  though  the words  of the petition of compromise were capable  of  being read as if the executants were giving up all rights whatever in the taluka of Gungore, yet in the opinion of their  Lord- ships the transaction amounted to no more than an  agreement to waive the claim to a share in and to the consequent right to  a partition of the taluka and there was no intention  to change  the character of the estate or the mode in which  it was  to  descend.   The parties in the year  1890  were  not thinking  of  their future rights of  survivorship  at  all. What  Sundara  Pandiya must be taken to have  said  by  this release  was "I am giving up my present rights as  a  senior member in favour of Kandasami whom I recognize as the right- ful  heir to the zamindari  as a member of the  joint  Hindu family."  Kandasami agreed to give him the village of  Domb- acheri  in lieu of recognition of his title by him.  It  was not  within  the ken of the parties then as to what  was  to happen to  the  zamindari in case Kandasami’s line died out.      For the reasons given we are of the opinion that by the release  Sundara Pandiya did not renounce his rights or  the rights  of his branch to succeed to the zamindari by  survi- vorship in case the line of Kandasami  became  extinct.   We hold  therefore that (1) (1874) 2 I.A. 263. 269 Kulasekara’s claim was rightly negatived in the courts below and that of Rajaya was rightly decreed.     In  the result all these appeals fail and are  dismissed with costs.                                   Appeals dismissed.

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   Agent for the appellant in Civil Appeals Nos. 28 & 29 of 1949, respondent No. 1 in Civil Appeals Nos. 30, 32 & 33  of 1949 and respondent No. 2 in Civil Appeal No. 31 of 1949 and for  Respondent No. 3 m Civil Appeal No. 31 of 1949:  M.S.K. Sastri.     Agent  for the appellant in Civil Appeals Nos. 31 to  33 of  1949, respondent No. 1 in Civil Appeals Nos. 28,  29  of 1949  and respondent No. 2 in Civil Appeal No. 30  of  1949: M.S.K. Aiyangar.     Agent for the appellant in Civil Appeals Nos. 30, 89 and 90 of 1949, respondent No. 1 in Civil Appeal No. 31 of  1949 and  respondent No. 2 in Civil Appeals Nos. 28, 29, 32 &  33 of 1949: S. Subrahmanyam.     Agent for the respondents Nos. 1 and 2 in Civil  Appeals Nos. 89 and 90 of 1949: V.P.K. Nambiyar.