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![handle is hein.slavery/ssactsengr0619 and id is 1 raw text is: XIII MOORE IND. APP., 139 INDEtUN VALUNGYPOOLY TAVER
ment. The passage runs thus: If partition be denied or disputed, the fact may be
known and certainly be obtained by the testimony of kinsmen, relatives of the Father
or of the Mother, such as inaternal Uncles, and the rest being competent witnesses
as before described; that is one mode of proving partition. It then goes on in
the disjunctive, or by the evidence of a writing or record of the partition, which
we have here. And then it says, It may also be [139] ascertained by separate or
unmixed House and field; that is, if other evidence of partition be wanting, it may
be supplied by proof that the Houses and fields had been actually divided and were
held separately.
It follows, from what has been said, that in their Lordships' view, this question
is really concluded by authority.
It has, however, been argued by Mr. Latham, that even if this agreement amounted
to proof of a partition, yet upon the evidence in the cause their Lordships ought to
come to the conclusion either that the agreement was waved, or that there had
taken place that which might, according to Hindoo Law, have taken place, namely,
a reunion of the two Brothers. Their Lordships, however, looking at the issues
in the cause, cannot find that those points have ever been raised. Certainly, there
is no suggestion of such a thing as a reunion, which would imply that there had been
an actual division, and then a coming together by mutual agreement of the two
Brothers; and their Lordships are further of opinion, that they.must presume, that*
although there was no division of the zemindary, or of the lands, by metes and bounds,
yet that the arrangement proceeded upon the footing of the deed, that the rents were
divided according to the stipulations of the deed, and that if the contrary took place,
it lay upon the Plaintiff to show that such was the case. It seems to their Lordships
that he has entirely failed to do so, and, therefore, they can see no ground whatever
for interfering with the judgment of the Court below..
Their Lordships-deem it right (although it has really no bearing upon the deci-
sion of this appeal) to [140] make a remark upon one passage in the otherwise very
learned and able judgment of the Court below. The passage is this, if it (that is,
the zemindary) was not partible, and the Brothers were, as the Plaintiff contends, un-
divided at the Brother's death, the Widow would, according to the decision of the
Privy Council in the case of Kata~r Natchier v. The Rajah of Shivagunga (9
Moore's Ind. App. Cases, 529), be entitled to the whole estate; so that, whether the
Plaintiff's, own view, or that which we take here, is correct, the Plaintiff is not
entitled to succeed in this action (ante [13 Moo. Ind. App.], p. 134). Now, that
seems, to proceed upon a singular misapprehension of the effect of the Shivagunga
case. It is immaterial, as I said before, to the decision of this case, because it is
admitted that the zeinindary was not impartible; but the Shivagunga case was this:
the family was shown to be undivided, but the impartible zemindary was shown
conclusively to have been the separate acquisition of the person whose succession
was the subject of dispute. The ruling of this Court was, that in that case the zemin-
dary should follow the course of succession as to separate property, although the
family was undivided; but if that zemindary had been shown to have been an an-
cestral zemindary, as in the case, the judgment of the Board would no do'bbt have
been the other way.
Their Lordships think it necessary to make this observation, in order to avoid
future misconception as to what was decided here in the Sbivagunga case.
They must humbly recommend Her Majesty to dismiss this appeal, with costs.
[141] INDERUN VALUNGYPOOLY TAVER,-Appellant; RAMASAWMY PANDIA
TALAVER and THUNGAMMA NACHIAR,-Respondents8* [July 13, 14, 1869].
On appeal from, the JJiqh Court of Judicatu re at Madras.
Illegitimate children of the Soodra .caste, in default of legitimate children, in-
herit their putative Father's estate [13 Moo. Ind. App. 159].
Present: Members of the Judicial Conmmittee,-The Right Hon. Sir James
William Colvile, the Right Hon. Sir Joseph Napier, Bart., and the Right Hon. the
Lord Justice Giffard. Assessor,-The Right Hon. Sir Lawrence Peel.
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