1866. SKIMUT RAJAH MOOTTOO VIJAYA issue, descended to his nephew in preference to his widow. In this view of the Court the issue on the Will, though properly raised, became immaterial. The several Plaintiffs in these two suits appealed RAGANADHA to the Sudder Dewanny Adawlut at Madras, and among their grounds of appeal was the genuineness of the Will, relied upon by Bodha Gooroo Taver, which was impeached by the other party. BODHA GOOROO SAWMY PERIYA ODAYA TAVER V. ΚΑΤΑΜΑ NATCHIAR, OF SHIVA- In the year 1837, the Sudder Court made one decree in the two appeals, in which it determined that Gowery ZEMINDAR Vallabha Taver and his brother were divided, and that the self-acquired property of a divided brother descended to his widow in preference to his brother's son, and that the Will in question was not a valid, but was a fabricated instrument. Bodha Gooroo Taver appealed to Her Majesty in Council from the above decree. He died pending the appeal, which was revived by Gowery Taver, his brother. In his case the Appellant relied, among other reasons, as his title to the Zemindary, upon the Will of Gowery Vallabha Taver. By the judgment of the Judicial Committee and Order in Council made thereon in June, 1844, the decree of the Sudder Court made in 1837 was reversed, on the ground that no points had been recorded, as required by Mad. Reg. XV. of 1816, sec. 10 (a) by the Court below on the question of division or no division; leave was, however, given to Anga Moottoo to bring a new suit within three years, the Judicial Committee intimating their opinion that the question of division. was the most substantial question, and appeared to be the only point on which the main question of title would ultimately depend. In pursuance of the leave thus given, Anga (a) See case reported, 3 Moore's Ind. App. Cases, 278. 1866. SRIMUT RAJAH Μουττου VIJAYA KAGANATHA BODHA GOOROO ΚΑΤΑΜΑ Moottoo, in 1845, brought a suit in formá pauperis, against Gowery Taver, who had been put into possession of the Zemindary, and his younger brother, Namasiraya Taver, to recover possession of the Zemindary, claiming to be heir of her deceased husband, shaping her case in a twofold manner; first, on the assumption that her husband and his brother were divided; but secondly, contending that the question of division or no division was immaterial, on the ground that the Zemindary was the selfOF SHIVA acquired estate of her husband, and so descended to her as his heir, whether he was a divided or undivided brother. Gowery Taver by his answer relied upon the Will; but contended that the Plaintiff ought to have confined herself to the question of division or no division, and denied the title set up by her as to the descent of self-acquisitions of an undivided brother. NATCHIAR, GUNGA. On the 27th of December, 1847, the Civil Court made a decree by which it was declared, first, that the family was undivided; secondly, that the alleged forgery of the Will by Moottoo Vadooga Taver, ought not to be urged against him as betraying any consciousness of a want of title; and thirdly, as to the Will itself, the Court stated that it was a mere nullity, which the Court need not look at or regard, and, moreover, that it was not a devise, but was a mere declaration of right. Anga Moottoo appealed to the Sudder Court at Madras. Pending the appeal Gowery Taver died, leaving the present Appellant, a minor, his heir. The appeal was heard by the Sudder Court, and judgment reserved, but before its delivery, Anga Moottoo herself died, childless, in consequence whereof the appeal abated. Several Claimants to the Zemin dary presented themselves as heirs in remainder, claiming to carry on the appeal, but they were referred to the Civil Court to institute suits to establish their respective claims. Accordingly, on the 5th of December, 1856, the present Respondent brought a suit in formá pauperis, in the Civil Court of Madura, for the recovery of the Zemindary, against the guardian of the present Appellant, and the Collector, as Agent of the Court of Wards, and in it she urged the forgery of the Will. The Appellant, by his guardian, filed his answer, but did not set up any claim under the Will. Sowmea Natchiar, one of the daughters of Vallabha Taver, also brought a suit in the year 1857, claiming, as heiress in remainder, to the same effect as the Respondent's suit. By a decree of the Civil Court, made in the two suits, dated the 25th of August, 1859, both suits were dismissed, the Court being of opinion that the decree of the 27th of December, 1847, was a judgment in rem on the fact of division. The Sudder Court confirmed this judgment on appeal on the 5th of November, 1859, on the ground that the question of division had been finally set at rest by the decree in 1847. The Respondent appealed to the Privy Council from these decisions, relying on the division between the Respondent's father and his brother, and contending that the self-acquisition of an undivided brother descended to his widows and daughters in preference to brothers and their sons, and insisting that the Will relied on was a forgery. The Appellant in his case did not rely upon the Will, but supported the decrees on the ground, first, that the Zemindary was not the self-acquired property of Gowery Vallabha 1866. SRIMUT RAJAH MOOTTOO VIJAYA RAGANADHA BODHA GOOROO SAWMY PERIYA ODAYA TAVER v. ΚΑΤΑΜΑ NATCHIAR, ZEMINDAR OF SHIVA GUNGA. 1866. SRIMUT VIJAYA KATAMA NATCHIAR, GUNGA. Taver, but was ancestral property; secondly, that Vallabha and his brother were undivided; and, thirdly, that the heir of an undivided brother was his brother and not his widow and daughters. In the argument before the Privy Council, the Appellant urged upon the Court the forgery of the alleged Will, and the Counsel for the Respondent did not rely upon, but virtually abandoned it (a). By the judgment of the Judicial Committee, dated the 30th of November, 1863, it was decided that the Respondent and her sisters were entitled to recover the Zemindary, irrespective of the question of division, on the ground that the self-acquisition of an undivided brother passed to his widow and daughters in preference to his brothers and their issue; and with respect to the Will, the judgment contained this passage: The Respondent "seems to have set up an instrument, which in the proceedings is called a Will. On the Appellant's side this is treated as a forgery. The Respondent, denying the forgery, does not now treat the document as a testamentary disposition, or as material to his title, and it may, therefore, be dismissed from consideration" (b). Consequent upon the Order in Council made on the above judgment, the Respondent was put in possession of the Zemindary. On the 25th of April, 1864, the Appellant brought a suit in the Civil Court of Madura, against the Respondent and Anga Taver, the husband and representative of the Respondent's deceased sister, Bootaka Natchiar, to recover the Zemindary. The plaint, after stating the before-mentioned facts, and that, in the suits brought in 1832 and 1833, the Appellant's ancestor had pleaded the Will; alleged that in (a) 9 Moore's Ind. App. Cases, 582. (b) Ib. p. 590. neither of those suits was any decision given upon it; though in the Sudder Court's decree of 1837, that Court incidentally stated its opinion that the Will was a fabrication, but this opinion, so far as related to the Will, was extra-judicial and unnecessary to the decision of the case; that in the suit in 1845, the Appellant's father had relied on the Will, but was not allowed to prove it, or produce documents in support of it, and the Respondent, in the suit of 1856, had also relied on the Will; that no decision was given on the merits; and that on the appeal before the Privy Council the Will was not and could not be adjudicated upon, as it formed no part of the record, and he founded his claim under the Will, and a Razinamah or agreement in July, 1830, alleged to have been entered into by the three widows of Gowery Vallabha Taver, as giving him a good title, notwithstanding the last-mentioned judgment of the Judicial Committee of the Privy Council. On the 4th of May, 1864, Mr. C. R. Pelly, the Acting Civil Judge, made an Order, under sec. 2 of Act, No. VIII. of 1859, as follows:-The question of the title to the property referred to in the plaint, as between the Plaintiff and Defendants, having been disposed of by the judgment of the Lords of the Judicial Committee of the Privy Council, delivered on the 30th of November, 1863, it cannot now be revived on the ground set forth in the plaint. The plaint is accordingly rejected. The Appellant appealed to the Sudder Court, on the ground that the Order of the Acting Civil Judge of Madura was wrong in law, as the Plaintiff's case, as made out in his suit, had not been before adjudicated upon by the Judicial Committee of the Privy Council. The appeal was heard before the High Court of 1866. SRIMUT RAJAH MOOTTOO VIJAYA RAGANADHA BODHA GOOROO SAWMY PERIYA ODAYA TAVER v. ΚΑΤΑΜΑ OF SHIVA- |