Supreme Court of India
DATTATRAYA @ PRAKASH AND ORS.versusKRISHNA RAO @ LALA SAHEB BAXI THROUGH L.RS. ETC. ETC.
- Citation
- 1991 INSC 199
- Decided
- 20 August 1991
- Disposal
- Case Partly allowed
- Bench
- N M KASLIWAL
Holding
An impartible jagir estate remains indivisible and governed by the rule of primogeniture; only the ancestral residential property (Schedule I) is partible, while the other properties, compensation, jewellery and utensils belong to the holder and are not subject to partition.
Summary
The case concerned a permanent jagir of Chandurpura village granted to the ancestors of the parties, which had been held by successive generations under the rule of primogeniture. After the abolition of the jagir under the Madhya Bharat Abolition of Jagir Act, 1951, the respondent claimed a half‑share in the jagir properties and movable assets, asserting that they were joint family (coparcenary) property. The appellants contended that the jagir was an impartible estate, indivisible and only subject to a maintenance right for junior members, and that the accretions and compensation did not convert it into partible joint family property. The Supreme Court held that the impartible jagir remained indivisible and governed by primogeniture, giving the junior member only a right to maintenance, and that only the Schedule I properties (the ancestral residential Bada) were partible and liable to partition, while Schedule II, Schedule III, jewellery and utensils were not. Consequently, the appeal was partly allowed, confirming the partition of Schedule I and setting aside the partition of the other items.
Issues considered
- The nature of the jagir estate: whether it is an impartible estate governed by primogeniture or a coparcenary joint family property subject to partition.
- Whether the abolition of the jagir under the Madhya Bharat Abolition of Jagir Act, 1951, transformed the estate into partible joint family property.
- The character of income and accretions from the jagir: whether they become part of joint family property.
- The extent of the junior member's right: maintenance only or a share in the estate.
- The status of jewellery and utensils: joint family property or separate personal property.
- The interpretation of relevant statutory provisions (s.3, s.5(b)(i), s.9, s.18, s.19 of the Abolition Act and related land revenue statutes).
Legislation cited
- Madhya Bharat Abolition of Jagir Act, 1951s. 18, s. 19, s. 3, s. 5(b)(i), s. 9
- Madhya Bharat Land Revenue and Tenancy Act, 1950s. 54(7), s. 69, s. 82
- Madhya Pradesh Land Revenue Codes. 158(1)(b), s. 164
Subjects
Hindu lawImpartible estateJagirRule of primogenitureJoint family propertyPartitionMaintenance rightMadhya Bharat Abolition of Jagir ActCoparcenarySuccession
Judgment
DATIATRAYA@ PRAKASH AND ORS.
A
v.
KRISHNA RAO @ LALA SAHEB BAXI THROUGH L.RS.
ETC. ETC.
AIJGCST 20, 1991
B
[N.M. KASLIWAL AND K. RAMASWAMY JJ.]
Hindu Law--Chandurpur Jagir-Grant-ln perpetuity and
enjoyment from generation to generation-Succession to impartible
estate-Rule of governance--Consideration of-Ini:ome of impartib/e
estare-Nature of.
c
One Yesaji-2, ancestor of the parties rendered meritorious mili-
tary service to Ranaji Scindia and in recognition thereof, the Raja of
Gwalior granted permanent jagir of Chandurpura village together with
the buildings situated in 100 Bighas of land and the residential Bada
D with right of enjoyment and succession from generation to generation.
By virtue thereof, the ownership, possession and enjoyment was con-
-
tinued successively for seven generations upto Dwarkanath by rule of
primogeniture. Dwarkanath was the nephew (brother's son) of the
respondent and father of appellant Nos. 1 and 2. Dwarkanath being
minor at the time of his succession to the estate, the court of wards took
E over the management and the respondent was appointed as Superinten-
dent and on his death, since appellants 1 and 2 were minors Aruna Rai,
their mother, initially managed the estate with the assistance of the
respondent and subsequently the respondent came into full control and
management. The respondent filed a suit for partition in the year 1962
of the plaint schedule 1 to 3 properties in equal moiety and allotment of
F one such share to him. He pleaded that the properties are coparcenary
joint family properties and he is entitled to a half share therein: The
respondent received maintenance from the jagir income at the rate of
Rs.125 per month. The ap11ellants-defendants disputed the nature of
the properties as joint family, status of the respondent and the appel-
lants as coparceners. They referred to various acc~etians made to the
G jagir estate by their father and mother and pleaded that the jagir being
an impartible estate is the separate and self-acquired properties of
Dattatraya-1 Dwarkanath by rule of primogeniture and the concept of
coparcenary and joint family status are inapplicable to it, and that the
respondent has thus no share therein, but has only a right of mainte-
nance as per the law and the custom of Gwalior State. It was also added
H that the respondent and his wife were given jewellery at the time of their mar-
644
DATIATRAYA v. KRISHNA RAO 645
riage which belonged to the family of the appellants and some of them
A
are stridhana of the 3rd defendant; the respondent had no share therein
or in the utensils etc. The trial court found that till the date of death of
Ghanshyam-2 in 1909, he was jagirdar. Dattatraya-1 and Dwarkanath
succeeded as Jagirdars by rule of primogeniture. After the abolition of
the Jagir, compensation was paid to Dwarkanath during his life time as
the eldest member of the family and the appellant no. 1 also had been B
paid balance of compensation. If a joint family possesses property
which was admittedly joint, the presumption would be that the pro-
perty continued to be joint and the burden lies upon the member
who claims as separate property to plead and prove it as separate or
self-acquired property. On this reasoning, the trial court granted pre-
liminary decree for partition of half share in schedule 1 and 2 and half
share in the moveable property viz., compensation amount jewellery
c
and utensils. The High Court substantially upheld the findings of the
trial court. It held that rule of primogeniture and survivorship was
introduced by the Manual of Jagirdars of the Gwalior State (Qwaid
Jagirdaran) in the year 1913 and with the abolition of the Jagir in 1951
under the Madhya Bharat Abolition of Jagir Act 28, 1951, the proper- D
ties became the ancestral Hindu Joint family properties and they are
> partible, irrespective of the fact in whose name it was entered either as
Bhumidar in revenue papers or Jagirdar. The High Court while con-
firming the decree of the trial court, directed the respondent to bring
into botch potch his jewellery and the appellants to have a half share
therein and accordingly dismissed the appeal and the cross-objections. E
Hence this appeal by the appellants-defendants by special leave.
Partly allowing the appeal, this Court,
..)\
HELD: Liability to partition is an ordinary feature of joint family
property, but it must not be supposed that joint property and partible F
property are mutually convertible terms. [652F]
Succession to an impartible estate is governed by rule of primo-
geniture and the eldest male member of the family would succeed by
survivorship to the impartible estate. [653H-654AI
G
The impartible estate, though descends by role of primogeniture
and survivorship on the eldest male member of the family, it must also
be proved that the junior members gave up expressly or by implication
his rightto a share therein. [655GJ
The income of an impartible estate is not income of the undivided H
-,
646 SUPREME COURT REPORTS [1991] 3 S.C.R.
family but is the income of the present holder, notwithstanding that he
A
has sons or brothers from whom he is not divided. The fact that the
son's or brother's right to maintenance arises ont of the eldest brother's
possession of impartible estate and is a right to be maintained ont of the
estate, do not make it a right of a unique or even exceptional character
or involve the consequence at Hindu Law that the income of the estate is
B not the holder's income. Income is not jointly e11joyed by the party
entitled to maintenanc1e and the party chargeable nor can it be said that
the respective chances of each son to succeed by survivorship make
them all co-owners of the income with their father or make the holder of
the estate a manager on behalf of a Hindu family of which he and they
are the male members of the family. [658C-E]
c The right of joint enjoyment which is ordinary incident to a
coparcenary, where the joint estate is partible, is excluded by the rule of
primogeniture and impartibility. The income of an impartible estate and
the accumulation of !inch income are the absolute property of the
holder. The immovable properties would be incorporated with imparti-
D hie estate. It must be proved that the holder had impressed the immov-
able properties as part of the estate. But the movable properties will
not. Movables are not an accretion to the estate as in the case of an
ordinary joint family estate. [659E]
The grant of Chandurpmr Jagir was in perpetuity and the enjoy-
E ment is from generation to generation. Geneology extracted herein
. before establishes that devolution by survivorship to the eldest male
member continued till time of Dwarkanath and the respondent received
only maintenance from the Jagir estate. What was implicit was made
explicit by -Qwaid Jagirdaran issued in Samvat 1970 by Maharaja
Scindia of Gwalior State. [659F ·GI
F
Thus it is indivisible and impartible and succeeded by lineal eldest
descendent of the family by rules of primogeniture. [659H]
Baijnath Prasad Singh v. Tej Bali Singh, 48 Indian Appeals
195=A.I.R. 1921 P.C,, 62; Katama Natchiar v. Raja of Shivganga,
G [1863] 9 Noore Indian Appeals, 588 (P.C.); Sartaj Kuari & Anr. v.
Deoraj Kuari, 15 Indian Appeals, 51; Prata/J Chandra Deo v. Jagdish
Chandra Deo, 54 Indian Appeals 289=A.I.R. 1927 P.C. 159; Anant
Bhikkappa Patil v. Shankar Ramchandra Patil, A.I.R. 1943 P .C. 196 at
201; Amrendra Man Singh v. Sanatan Singh, 60 Indian Appeals
242=A.I.R. 1933 P.C. 155; Shiba Prasad Singh v. Rani Prayag Kumari
H Debi & Ors., 59 Indian Appeals 351 = A.I.R. 1932 P.C. 216; Chin-
DAITATRAYA v. KRISHNA RAO [RAMASWAMY;J.] 647
nathayi @Veeralakshmi v. Ku!asekara Pandiya Naicker & Anr., [1952]
S.C.R. 241; Smt. Rani Prabha Kumari Bibi v. Jagdish Chunder A
Dhabal, 29 Indian Appeals 82=1LR 29 Calcutta 433 P.C.; Janki
Pershad Singh v. Dwarka Pershad Singh, 40 Indian Appeals 170=1LR
35 Allahabad 391 P.C.; Murtaza Husain Khan v. Mohd. Yasin Ali
Khan, 43 Indian Appeals 269=A.I.R. 1916 P.C. 89; Jagdamba Kumari
v. Wazir Narain, 48 Indian Appeals 195=A.l.R. 1921 P.C. 62; Com- B
misSioner of Income-tax, Madras v. Hon'ble Sri Ravu Swetachalapati
Ramakrishna Ranga Rao, Rajah of Babb iii, A.I.R. 1937 Madras 515;
Commissioner of Income-tax, Punjab v. Dewan Bahadur Dewan
Krishna Kishore, Rais, Lahore, A.I.R. 1941P.C.120; Mirza Raja Shri
Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur. & Ors. v.
Shri Pushavathi Visweswar Gajapathi Raj & Ors., [1964] 2 S.C.R. 403;
Muttu Baduganadha Tevar v. Periasami @ Udayana Tevar, 23 Indian C
appeals 128 P.C.; Ravi Janardhana Krishna Ranga Rao v. State of
Madras, A.I.R. 1953 Madras 185; Thakore Shri Vinayasinghji v.
Kumar Srinatwarsinghji & Ors., [1988] (Supp.) S.C.C. 133; Sri Raja
Rao Venkata Mahipati Gangadara Rama Rao Bahadur v. Raja of Pit-
tapur, 47 Indian Appeals 354=A.I.R. 1918 P.C. 81; Maharajah of Jey- D
pore & Anr. v. Vikrama Dea Garu,. 52 Indian Cases 333=A.I.R. 1919
P.C. 126; Anant Kibe & Ors. v. Purushottam Rao & Ors., [1984]
(Snppl.) S.C.C. 175, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1072
of 1976. E
From the Judgment and Order dated the 2.2.1973 of the Madhya
Pradesh High Court in First Appeal No. 19 of 1966.
T.U. Mehta, S.N. Singh and T.N. Singh for the Appellants.
F
V.A. Bobde, Uday U. Lalit, S.K. Gambhir, AG. Ratnaparkhi,
Ms. Vandana Kakre and R.A. Roman for the Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. This appeal by special leave under Art. G
·\ 136 of the Constitution of India arises against the decree and judgment
dated February 2, 1978 in First Appeal No. 10 of 1966 of the M.P.
High Court at Gwalior Bench . Krishna Rao@ Lala Saheb, for short
"respondent" laid the Civil Suit No. 9-A of 1962 before the Addi.
District Judge, Gwalior for partition of the plaint schedule I to 3
properties in equal moiety and allotment of one such share to him. H
648 SUPREME COURT REPORTS [1991] 3 S.C.R.
A Pending this appeal he died and his legal representatives are on
record. The Trial Court by its judgment and decree dated January 31,
1966 granted preliminary decree for partition of half share in schedule
1 and 2 and half share in the movable property, namely compensation
amount, jewellery and utensils as found in the inventory prepared by
the Nazir except the stridhana property of 3rd defendant i.e. mother of
B appellants Nos. 1 and 2. The High Court while confirming the decree
of the Trial Court directed the respondent to bring into hotch patch his
jewellery and the appellants to have a half share therein and dismissed
the appeal and the crosrnbjections.
.~
The admitted facts are that one Ghanshyam Sadashiv Baxi
Saheb, for short 'Ghanshyam-1' was the common ancestor. He had
C two sons by name Yesaji-1 and Phatoji. Yesaji-1 had a son by name
Ramakrishna, whose son was Yesaji@ Baba Saheb for short Yesadji-
2. Yesaji-2 rendered meritorious military service to Ranaji Scindhia
and in recognition thereof the Raja of Gwalior granted permanent
Jagir of Chandurpura village under Ex. D-20, together with the build-
D ings sit~ated in 100 Bighas of land and the residential Bada with right
of enjoyment and succession from generation to generation. By virtue
thereof the ownership, possession and enjuyrnent was continued
successively for seven generations upto Dwarkanath by rule of primo-
geniture. Ghanshyam @Tatya Saheb for short Ghanshyam-2 had two
sons by name Dattatraya Rao @ Bapu Saheb for short Dattatraya-1
E and the respondent. Dwarkanath was the son of Dattatraya-1. The
appellant, Dattatraya @Prakash and Pradip @Anil, appellants Nos. 1
and 2 are sons of Dwarkanath, Aruna Bai, third defendant is his
widow. Ghanshyam-2 died on June 20, 1909. Dattatrya-1 died on
February 6, 1926 and Dwarkanath died on May 19, 1956.
F Dwarkanath being minor on his succession to the estate the court
of wards took over management and the respondent was appointed as
a Superintendent. On death of Dwarkanath since appellants 1 and 2
were minors Aruna Bai, their mother, initially managed the estate
with the assistance of the respondent. Subsequently the respondent
came into full control and management till date of suit. The respon-
G dent filed the suit for partition in the year 1962 pleading that all the
plaint schedule 1 to 3 properties are coparcenary and he is entitled to a I
half share therein. The respondent received maintenance from Jagir
income at the rate of Rs.125 per month.
In the written statement, the appellants, while admitting the
H genealogy, their residential house at Gwalior as ancestral, they dis-
DATTATRAYA v. KRISHNA RAO [RAMASWAMY, J.] 649
puted the nature of the properties as joint family, states of the respon-
A
dent and the appellant as coparceners. They admitted that till death of
Ghanshyam-2 in 1909 the family was joint and thereafter they were
separated by mess -and residence in the year 1929. The house M No.
626 Holka No. 101 at Gwalior was the residential old house but the
Verandah and two rooms on both sides were consO"ucted by
Dattatraya-1. The shops in the back side of iron gate at Kampoo Road B
were not existing during life time of Ghanshyam-2, but the lands were
purchased by Dattatraya-1 with the Jagir income and the shops and the
rooms were constructed with the J agir income. It was also pleaded that
four shops situated on eastern side of iron gate were constructed by the
appellants' mother from the compensation of the Jagir lands and the
personal ~mount belonging to them. Jeherin Araji lands were
purchased by Dattatraya-1 from his personal amounts. The rooms c
situated on eastern side of Shashikala Ranglekar was purchased and
constructed du.ring the minority of Dwarkanath from the income of the
Jagir. The property adjacent to the gate on the north of the Bada
namely two rooms, gate, the pucca house along with the well were
constructed from the income of the hgir by Dattatraya-1. The pator D
on the south side of the stair case was constructed by Dwarkanath from
Jagir's income. Pucca walls adjacent to the quarters and the southern
side of the main residential Bada are estate properties and as per law
and custom of Gwalior State Dwarkanath became the owner of the
property. The respondent has no· right to a share but had only right to
maintenance. After the death c;>f Ghanshyam-2 the respondent con- E
tinued to receive maintenance from his brother Dattatraya-1 who con-
tinued in possession and enjoyment of the Jagir as his personal pro-
perty. The respondent had right to share only in the private property.
The residential house except Verandah and two rooms shown as No. 1,
2 and 3 in the enclosed map belong to the family and those three items
belong to Dattatraya-1. Accordingly it is their plea that the Jagir being F
impartible estate is the separate and self-acquired properties of
Dattatraya-1 and Dwarkanath by rule of primogeniture and the con-
cept of coparcenary and joint family status are inapplicable to it. The
respondent has no share therein, but has only right to maintenance as a
junior member of the family as per the law and custom of Gwalior
State. It was further pleaded that the respondent and his wife were G
given jewellery at the time of their marriage. The jewellery found by
Nazir belong to the family of the appellants and some of them are
stridhana of 3rd defendant. The respondent is not entitled to any share
therein or in the utensils.
The trial court found that till date of death of Ghanshyam-2 in H
650 SUPREME COURT REPORTS [1991] 3 S.C.R.
1909, he was Jagirdar. Dattatraya-1 and Dwarkanath succeeded as
A
Jagirdars by rule of primogeniture. After the abolition of the Jagir
compensation was paid to Dwarkanath during his life time as the eldest
member of the family, and the appellant No. 1 also had been paid
balance of the compensation. If a joint family possesses property
which was admittedly joint the presumption would be that the pro-
B perty continued to be joint and the burden lies upon the member who
claims and separate property to plead and prove it as separate or self
acquired property. The respondent was living jointly with his brother
Dattatraya-1. Number of sale-deeds show the purchase made by
Dattatraya-1; that old pators and two shops were remodelled by the
court of wards. The purchase of the plots by Dattatraya-1 and con-
structions made thereon by him on the ancestral lands are the joint
c family properties. The Bada at Gwalior is the residential house and
was not a part of the grant in Ex. D-20. Therefore, the residential
Bada on the Kampoo Road is an ancestral property of the family.
Whatever accretions were made therein must be deemed to be
incorporated for the benefit of the family unless it is specifically shown
D that it was self-acquired and separate property by Ghanshyam-2 or
Dattatraya-1 or Dwarkanath. After the abolition of the Jagir
0
Dwarkanath received comp ensation. The four shops constructed also
form joint family property. The properties given under Ex. D-20 in the
village Chandupura are the Jagir properties. This is also ancestral and
impartible property. There is no evidence to show that out of the J agir
E income received, any property purchased or constructed were kept as
separate properties. Therefore, whatever accretions made by Dattat-
raya-1 or Dwarkanath or Aruna Bai are joint family properties. It was
also found that the respondent did not mal<e any contribution, nor
improved the properties. As there is no evidence to show that
Dattatraya-1 treated the income of the property as his separate
F income, the plaint schedule-I properties are ancestral properties. The
Jagir compensation received from time to time also form the joint
family properties. The relations between the family was smooth and
cordial till 1962. There was no partition earlier thereto. Merely
because succession to the J agir was governed by the rule of primogeni-
ture, it did not clothe the Jagir with the incidence of separate and
G self-acquired property. Therefore, they are joint family properties
liable to partition. The jewellery except the stridhana of third
defendant are joint family properties. The High Court substantially
upheld the findings of the trial court. It held that rule of primogeniture
and survivorship was introduced by the Manual of Jagirdars of the
Gwalior State (Qwaid Jagirdaran) in the year 1913 (Samwat 1970) and
H with the abolition of the Jagir in 1951 under the Madhya Bharat Aboli-
DATIATRAYA v. KRISHNA RAO (RAMASWAMY. J.] 651
tion of Jagir Act 28, 1951 (Samwat 2008) for short 'the Act', the
A
properties became the ancestral Hindu Joint Family properties and
they are partible, irrespective of the fact in whose name it was entered
1 either as Bhumidar in revenue papers or Jagirdar. The rooms con-
structed in the ancestral Bada are accretions to the ancestral house and
became part and parcel of it. There is no evidence that the money
spent for construction came from separate or own fµnds of the appel- B
lants. All the rooms became acc<etions to the ancestral property and
became joint family property. The jewellery are joint family proper-
ties to the extent found by the Trial Court and are liable to partition.
The compensation paid under the Act also belongs to the joint family
property. It directed to bring into hatch patch the jewellery of the
respondent for partition in equal shares.
c
Shri T. U. Mehta, learned senior counsel for the appellants, con-
tended that the courts below erred in holding that the properties are
joint family properties, liable to partition. Since it is a Jagir grant, as
per the custom and law, the eldest male member succeeds by rule of
primogeniture and survivorship. Therefore, they are the separate D
properties of the eldest descendant, subject to right of maintenance by
the junior members of the' family. Despite they being members of the
undivided Hindu Joint Family, the concept of coparcenership cannot
be applied to Jagir estate. The respondent having had the benefit of
maintenance right through, is not entitled as coparcener to a partition
of the plaint scheduled properties as the joint family properties. The E
jewellery are the exclusive property of the appellants/defendants.
Shri Bobde, learned senior counsel for the respondent argued
that though the Jagir was granted to the named individual, the recitals
therein_ unmistakably point to the fact that. it is to be enjoyed by the
family from generation to generation. It would, therefore, be the F
coparcenary property. Appellants and the respondent being governed
by the Mitakshara Law are entitled to equal moiety. The jewellery is
the joint family prop·erty. There is no partition at any time. It was
further contended that after the abolition of the Jagir under the act,
Dwarkanath or appellants received compensation and the properties
were acquired from the income of the compensation. The properties, G
therefore, are impressed with joint family character and are partible.
Thus the decree for partition is not illegal.
The facts, as found or not disputed in the pleadings, are thus:
Admittedly, Chandurpura village was granted as Jagir under Sanad
(Ex. D-20) and thereafter the family lived in Gwalior for several gen- H
652 SUPREME COURT REPORTS [ 1991] 3 S.C.R.
crations in the Bada. Certain accretions or incorporations \Vere made
A
to the properties of the family from out of the income derived from the
estate or compensa.tion m:eived under the Act. Dattatraya-1,
Dwarakanath and 3rd defendant improved the properties. The respen-
dent, right through, received maintenance from the estate and did not
contribute any\hing for the improvement of the '5tate. He had his
B education from the maintenance granted from the estate and became a
Judicial Officer. After the abolition of the Jagir under the Act com-
pensation received also was used to build shops. The Jagir remained
indivisible and impartible and devolved successively for seven genera-
tions on the eldest male lineal descendant and it continued till
Dwarkanath's death in 1956. They are governed by Mitakshara Hindu
Law and rule of primogeniture. Under the Act the Jagir lands were
c resumed and Jagir was abolished. During the management of the
estate by the Court of Wards, the respondent admittedly worked as
Superintendent. The family remained undivided till date of suit. There
is no evidence that any Jagirdar in particular, Dattatraya-1 or
Dwarkanath treated the accretions as separate or self acquired
D property.
From these facts the question emerges whether the plaint
schedule properties are coparcenary. In our view, the Courts below
fell in serious misconception; of law. Qwaid Jagirdaran only recog-
nised and reiterated the existing law or custom of impartibility and
E indivisibility of Jagir, etc. and succession by rule of primogeniture.
High Court also committed error in holding that impartibility came to
an end with the abolition of Jagir under the Act and that earlier
thereto and subsequent to the Act the properties were coparcenary.
Neither court appreciated the correct legal position. ....
p In Chapter 25 of Maycn's Hindu Law, 12th Edition, at page
1065, paragraph 744 it is stated that liability to partition is an ordinary
feature of joint family property, but it must not be supposed that joint
property and partible property are mutually convertible terms. If it
were so, an impartible estate could never be joint property. There are
estates which by special law or custom descend to one member of the
G family, generally the eldest, to the exclusion of the other members and
which are impartible, though they are joint property, in the eye of the
law, belonging equally to the other members; and their rights are
hedged in by a number of restrictions or limitations. The common
instances of this class are the ancient zamindaries .... or feudatory
estates held on military service tenure such as ........ royal grants
H ....... services such as J agirs ..... .
DATIATRAYA v. KRISHNA RAO [RAMASWAMY, J.J 653
In Baijnath Prasad Singh v. Tej Bali Singh, 48 Indian Appeals
A
195=AIR 1921 P.C. 62 the Judicial Committee held that succession to
impartible estate will be regulated according to the ordinary rule of
) Mitakshara Law and that "the respondent being a person who in joint
family would, being eldest of the senior branch, with head of the
family, is the person designated in this impartible estate to occupy the
gaddi. Accordingly it was held that rule of primogeniture would apply B
and not the ordinary rule of Mitakshara Law of survivorship that
would be applicable to impartible estate.
In Kalama Natchiar v. Raja of Shivganga, [ 1863] 9 Moore Indian
Appeals, 588 (P.C.) the Board held that the Zamindari is admitted to
be in the nature of a principality of impartible and capable of enjoy-
ment by only one member of the family at a time and that therefore c
Mitakshara law of succession of the eldest male member would be
applicable. In Sartaj Kuari & Anr. v. Deoraj Kuari, 15 Indian Appeals,
51 the Board held that there was no co-parcenary in impartible estate.
Pratap Chandra Deo v. Jagdish Chandra Dea, 54 Indian Appeals
289=AIR 1927 P.C. 159 ruled that there is no co-ownership in an D
impartible estate and that, therefore, no right of coparcenary survivor-
ship would arise in an impartible estate. '
In An ant Bhikkappa Patil v. Shankar Ramchandr~ Patil, AIR
1943 P .C. 196 at 201 it was held that:
E
"Now an impartible estate is not held in coparcenary,
though it may be joint family property. It may devolve as
joint family property as separate prope,ty of the last male
owner. In the former case, it goes by survivorship to that
individual, among those male members who in fact and in
law are undivided in .respect of the estate, who is singled F
out by the special custom. e.g., lineal male primogeniture.
Jn the latter case, jointness and sur•ivorship are not as such
in point; the estate devolves by inheritance from the last
male owner in the order prescribed by the special custom or
according to the ordinary law of inheritance as modified by
the custom." G
In Amrendra Man Singh v. Sanatan Singh, 60 Indian Appeals
242= AIR 1933 P. C. 155 it was held that the zamindari property
belonged to the adopted son as to the last male owner.
Thus it is settl~d law that succession to an impartible estate is H
654 SUPREME COURT REPORTS [1991] 3 S.C.R.
governed by rule of primogeniture and the eldest male member of the
A
family would succeed by survivorship to the impartible estate. It is
seen from the record and it is not controverted even across the Bar that
for seven successive generations, the Jagir estate descended on the
eldest male member of the family by rule of primogeniture.
B The question then is whether the Jagir is partible as Hindu Joint
Family property. In Shiba Prasad Singh v. Rani Prayag Kumari Debi
& Ors., 59 Indian Appeals 35l=AIR 1932 P.C. 216 relied on by Sri
. Mehta, Sir Dinshan Mulla, speaking for the Board held that imparti-
bility is essentially a creation of custom. In the case of ordinary joint
family property, the members of the family have (I) the right of parti-
tion, (2) the right to restrain alienations by the head of the family
c except for necessity, (3) the right of maintenance, and (4) the right of
survivorship. ·rhe first of theje nghts cut111ul exist in the case of an
impartib/e estate though ancesrral. jrvm rhe very nature of the estate.
The second and the third are incompatible with the custom of imparti-
bility. To this extent the general law of Mitakshara has been super-
D seded by custom and the impartible estate, though ancestral, is clothed
with the incidents of selfacquired and separate property. But the right of
survivorship is not inconsistent with the custom of impartibility. This
right, therefore, still retains its character of joint family property, and its
devolution is governed by the general Mitakshara law applicable to such
property. Though the other rights which 9 co-parecener acquires by
E birth in joint family property no longer exist, the birth right of the senior
member to take by survivorship still remains. (emphasis supplied) Nor
is this right a mere succes.sion is similar to that of a reversioner
succeeding on the death of a Hindu widow to her husband's estate. It is
a right which is capable of being renounced and surrendered. There-
fore, it follows that in order to establish that a family governed by the
F Mitakshara in which there is an ancestral impartible estate has ceased
to be joint it is necessary to prove an intention, express or implied, on
the part of the junior members of the family to renounce their right of
succession to the estate. It is not sufficient to show a separation merely
in food and worship.
G In Chinnathayi@ Veeralakshmi v. Kulasekara Pandiya Naicker
& Anr., [ 1952] SCR 241 this Court held that the right to bring about
partition of an impartible estate cannot be inforred 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. This Court
H further held that:
"To establish that an impartible estate has ceased to be
joint family property for purposes of succession it is neces-
sary to prove an intention, express or implied, on the part
J 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 B
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 intention to impress upon the
zamindari the char,acter of separate property."
c
In Shiba Prasad Singh's ~ase it was further held thus: ·
"Surely then the property will pass not as his separate
property, but by survivorship as joint property-devolu-
tion by survivorship being another incident of an impartible D
estate. The fact is that when self-acquired property is
· incorporated with an ordinary joint family estate the pro-
perty so incorporated is impressed with all the incidents
which attach to an ordinary joint family estate and when
self-acquired property is 'incorporated with an ancestral
impartible ·estate the property so incorporated is impressed E
with all the incidenis which attach to an ancestral imparti-
ble, estate. The mere possibility therefore of the holder
alienating the property after incorporation iSno reason for
) denying to him the power which the Hindu law gives him of
changing the mode of descent to his property. Nor is there
anything in that rule of law which is inconsistent with the F
custom of impartibility."
Accordingly it must be held that the impartible estate, though
· descends by rule of primogeniture and survivorship on the eldest male
member of the family, it must also be proved that the junior members
gave up expressly or by implication his right to a share therein. G
The further question is whether it is competent to the holders of
an ancestral impartible estate to incorporate. with the ~state other
properties acquired or incorporated by him or them with the income of
the .impartible estate. In Smt. Rani Prabha Kumari Dibi v. Jagdish
Chunder Dhabal, 29 Indian Appeals 82=ILR 29 Calcutta 433 (P.C.) H
(
·I
I
the question was regarding succession to an ancestral impartible estate . (, 5(,
A and four Mauzas that has been purchased on behalf of the last holder
out of the savings of the estate. The Board held that there must be
evidence to establish the intention of the holder express or implied to
incorporate the property as part of the estate. Though the collection of·
the rents was by the estate servant and the p·apers were kept in the
B estate, the Board held that the evidence was not sufficient to hold that
the Raja intended to incorporate the four mauzas with ancestral estate
for the purpose of his succession. The 4 Mauzas must, therefore,
follow the rule of Milakshara as to. self-acquired property. In Janki
Pershad Singh v. Dwarka Pershad Singh; 40 Indian Appeals 170=ILR
35 Allahabad 391 P.C. the movable ·and Immovable p.roperties
. acquired from the income of the estate and were incorj:iorated as part
C of the estate, yet the Board held that the question whether the proper-
ties acquired by an owner becomes part of the ancestral. estate for the
purpose of the succession would be considered from the intention of
the holder of the estate. lt was held, on facts,. that no sufficient evi-·
dence was adduced to establish such an intention. In Murtaza Husain
D Khan v. Mohd. Yasin Ali Khan, 43 Indian Appeals 269=AIR 1916
P.C. 89 as regards immovable properties the same view.was reiterated.\~ .
In Jagdamba Kumari v. Wazir Narain, 48 Indian Appeals 195=AIR. · '~~
1921 P.C. 62 the Board held that the income of ancestral impartible
estate was the absolute properties of the owner of the estate and not an
accretion to. the estate as in the case of ordinary joint family estate.
E While reversing the judgment of the High Court it held:
"It is possible that this confusion is due to the considera-
tion of the position with regard to an ordinary joint family
estate. In such a case the income, equally with the corpus,
forms part of the family property, and if the owner mixes
F his own moneys with the moneys of. the family-as; for
example, by putting the whole into one account at the
bank, or by treating them in his accounts as indistinguish-
able-his own earnings share with the property with which
they are mingled the character of the joint family property;
but no such considerations necessarily.apply to the income
G from impartible property."
In Jagdamba Prasad's case the Board held that the income
received is the absolute property of the owner of the impartible estate
and it does not attach. to the estate as does the income of ordinary
ancestral estate attaches to the estate. While immovable property can
H be· impressed with the impartible estate ~·movable property cannot". It
I
DATIATRAYA v. KRISHNA RAO [RAMASWAMY, J.J 657
was further held that the income received is the absolute property of
A
the owner of the estate it derives and in no way from the property he
might have by his own saving. It is wrong assumption to make that the
) income of the property of that nature is so effected by the sources from
which it came that still retains itself original character. In Commis-
sioner of Income_tax, Madras v. Hon'b/e Sri Ravu Swetachalapati
Ramakrishna Ranga Rao, Rajah of Babbili, AIR 1937 Madras 515 the B
full Bench held that the income received by the holder of the imparti-
ble estate was not received as a member of the Hindu Undivided
Family. The income is. his and the junior members have no right the-
rein. In Shiba Prasad's case (1932), the Board held that it is possible to
incorporate immovablf property as a part of the estate, but movable
properties are the separate properties and they cannot be incorporated
and the doctrine of incorporation does not apply in the words thus: c
"The rule of succession in such a case is recognised by the
State as. part of the law of family, though it is no more than
the result of a course of conduct of individual subjects of
the State constituting the family. "Under the Hindu system D
of law, clear proof of usage." even if it be a family usage.
/- ,J "will outweigh the written text of the law;"
In Commissioner of Income.Jax, Punjab v. Dewan Bahadur
Dewan Krishna Kishore, Rais, Lahore, AIR 1941 P.C. 120 Sir George
Rankin speaking, for the Board, held that when a family governed by E
the Mitakshara, by custom the rule of primogeniture controls the
devolution of impartible property, the custom of impartibility does not
touch the succession ~ince the right of survivorship is not inconsistent
with the custom; hence the estate retains its character of joint family
property and devolves by the general law upon the person who, being
in fact and in law joint in respect of the estate, is also the senior F
member in the senior line. Hence a holder of the estate receiving
income from house property cannot be said to be the owner of such
property. It is the joint family that is the owner and, therefore, he
cannot he assessed as an individual in respect of such income.
In Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne G
Sultan Bahadur & Ors. v. Shri Pushavathi Vi<weswar Gajapathi Raj &
Ors., [1964) 2 SCR 403 it was held that immovable property subse-
quently acquired also would become impartible and ceases to be parti-
ble and becomes impartible but the theory of incorporation cannot
apply to movable property. In case there is a family custom even in
respect of movable properties, as per the custom those movable pro- H
65K SUPREME COURT REPORTS [ 1991) 3 S.C.R.
perties also become part of impartible estate. Incorporation is a matter
A
of intention. It is only where evidence has been adduced to show the
intention of the acquirer to incorporate the property acquired by him
with the impartible estate of which he is the holder, then an inference
can be drawn about such incorporation. The question, therefore, is
one of intention of acquirer. By custom in the family the jewellery
B would be treated to form part of the regalia which belong to the holder
of the estate and then would form part of impartible estate. In that
case as per custom in the family certain jewellery were treated as part
of impartible estate and belonged to the estate.
The income of an impartible estate, thus is not income_of-the
undivided family but is the income of the present holder, notwith-
c standing that he has sons or brothers from whom he is not divided. The
fact that the son's or brother's right to maintenance arises out of the
eldest brother's possession of impartible estate and is a right to be
maintained out of the estate, do·not make it a right of a unique or even
exceptional character or involve the consequence at Hindu Law that
D the income of the estate is not the holder's income. Income is not
jointly en joyed by the party entitled to maintenance and the party
chargeable nor can it be said that the respective chances of each son to
succeed by survivorship make them all co-owners of the income with
their father or make the holder of the estate a manager on behalf of a
Hindu family of which he and they are the male members of the
E family.
It is equally well settled law that the holder of impartible estate
can incorporate othe~ properties belonging to him with that estate so
as to make them also impartible and descendable to a single heir by
survivorship. It is one of intentions to be proved as a fact whether the
F accretions are his separate properties or incorporated as part of
impartible estate. The intention may be express or implied by conduct
or treatment of the properties. In Muttu Baduganadha Tevar v.
Periasami@ Udayana Tevar, 23 Indian Appeals 128 (P.C.) the Privy
Council held that the doctrine of representation between the father and
his three lineal descendants has been on the assumption that he is ,.
G reborn in them and the eldest to exclude his brother is continued to his
lineal male heirs. In Ravi Janardhana Krishna Ranga Rao v. State of
Madras, AIR 1953 Madras 185 relied on by Sri Mehta, it was held that
in the case of an estate to which the incident of impartibility attaches
by custom, custom supersedes the general Mithakshara law excepting in
the matter of devolution of the property by right of survivorship.
When an impartible estate was acquired by the Govt. under the
DATIATRAYA v. KRISHNA RAO (RAMASWAMY, J.l 659
Madras Estates (Abolition and Conversion into Ryotwari) Act com- A
pensation received retains the incident of impartibility attached to the
estate and the principle that conversion would not alter the nature of
the estate is universal.
In Thakore Shri Vinayasinghji v. Kumar Srinatwarsinghji & Ors., B
[ 1988] (Supp.) SCC 133 relied on by the appellants, this court held that
there is no restraint on the power of alienation of the holder of the
impartible estate. There is a right of survivorship by birth to the senior
members of the family, but in all other respects it is clothed with the
incidents of self-ac;quired and separate property with the holder of
impartible estate and unlimited right of acquisition not only by transfer
but by will. In Sri Raja Rao Venkata Mahipati Gangadara Rama Rao C
Bahadur v. Raja of Pittapur, 47 Indian Appeals 354=AIR 1918 P.C.'81
(second Pittapur case) and in Maharajah of Jeypore & Anr. v. Vikrama
Deo Garu, 52 Indian Cases 333=AIR 1919 P.C. 126 the Board also
held that apart from custom and from near relationship to the holder,
the junior members of the family have no right to maintenance out of · D
the income of the impartible estate.
It is also thus well settled law that the right of joint enjoyment
which is ordinary incident to a coparcenary, where the joint estate is
partible, is excluded by the rule of primogeniture and impartibility.
The income of an impartible estate and the accumulation of such E
income are the absolute property of the holder. The immovable pro-
perties would be incorporated with impartible estate. It must be
proved that the holder had impressed the immovable properties as part
of the estate. But the movable properties will not. Movables are not an
accretion to the estate as in the case of an ordinary joint family estate.
It is seen that the grant of Chandurpur Jagir was in perpetuity p
and the enjoyment is from generation to generation. Genealogy
abstracted hereinbefore establishes that devolution by survivorship to
the eldest male member continued till time of Dwarakanath and the
respondent received only maintenance from the Jagir estate. What was
implicit was made explicit by Quaid Jagirdaran issued in Samwat 1970 G
by the Maharaja Scindhia of Gwalior State. In paragraph 2 thereof it
has been stated that Jagir grant shall be indivisible and impartible
property. In paragraph 2 of the preamble it is stated that the Jagir in
its entirity would continue in the family in which they were conferred.
Thus it is indivisible and impartible and succeeded by lineal eldest
descendent of the family by rules of primogeniture.
H
,
660 SUPREME COURT REPORTS [1991] 3 S.C.R.
A Chandarpura Jagir was granted under Ex. D-20 with 100 Bighas
of lands and the buildings situated therein, accretions made in such
estate out of its income are impartible estate governed by the rule of
primogeniture and was succeeded by Dwarkanath as last eldest male
descendant in the family. Therefore, they were not the joint family
properties but are separate properties of Dwarkanath and the respon-
B dent has no right to a share therein as a coparcener. The other lands
acquired from the income thereof stand incorporated as part of the
Jagir and are not partible. Section 9 of the Act recognises the existing
legal position and that the Junior member has only right to mainte-
nance and directs payment thereof out of the compensation amount
and creates a charge thereon. Therefore, the properties enumerated in
items I to 3 and 5 of schedule 2 are not partible. The preliminary
c decree in that regard is set aside. There appears to be dispute regard-
ing item 4. So it is left out to be decided in separate proceedings.
Both the courts found as a fact that the accretions were from out
of the income of the Jagir. Schedule 1 ancestral residential Bada and
D other properties situated at Gwalior are not covered by the sanad Ex.
D-20. Admittedly, all the members of the joint family lived therein.
The prior partition in 1929 set up by the appellants was negated by the
courts below. Though Dattatraya-1 and Dwarkanath improved the
properties from the income of Jagir estate as part of the joint estate,
there is no evidence to establish that either Dattatraya-1 or
E Dwarkanath treated those properties as their separate or self acquired
properties. Both the courts found as a fact that accretions formed part
of the joint family properties. Equally there is no evidence that the
respondent had given up his share therein either expressly or by impli-
cation by conduct. His assertion to be a coparcener and the properties
to be coparcenary shows that he continued to claim to be a member of
F the joint family and admittedly the properties are joint. The accretions
stood blended with ancestral joint family properties.
Under s. 3 of the Act what was resumed was only Jagir lands.
Resumption means taking back what was given; what was resumed are
the lands and not the property of a person from whom it was taken by
G the rightful owner. Therefore. what was resumed is the right, title and
interest in the Jagir lands covered by the provisions of the Act and
compensation was paid in lieu thereof. Under s. 5(b)(i) notwithstand-
ing the vesting in the State under s. 4 thereof all open enclosures used
for . . . . . . .. domestic purposes and in continuous possession for 12
years immediately before the date of the resumption; (II) all open
H house sites purchased for valuable consideration; (III) all private
DATIATRAYA v. KRISHNA RAO (RAMASWAMY, J.J 661
buildings, places of worship, wells, etc. situated in ...... house site
A
specified in clause (I) and (II); (IV) all groves wherever situated and
lands appurtenant thereto shall continue to belong to and be held by
the Jagirdar and be settled on him; (V) all tanks, trees, private wells
and buildings in the occupied lands shall continue tci belong to or be
held by the family. Thus it is clear that all private properties including
· buildings in the Jagir belong to or held by the Jagirdar remained to be B
the property of the Jagirdar. All private properties in the Jagir other
than impartible Jagir, therefore, remained to be joint family property.
We, therefore, hold that schedule I properties are partible. The pre-
liminary decree for partition of them are upheld.
It is seen that 100 bighas of land in Chandurpura was granted as
Jagir. What had remained after the Act is hardly 5.41 bighas. So the c
rest of the lands, obviously, was resumed by the Government, under
the Act. Ry operation of s. 18 of the Act it is Jagirdar who is entitled to
receive compensation money payable under the Act. Therefore, the
money received towards compensation of Jagir lands also retains the
character as impartible. Under the Act by operation of s. 19 of the Act D
the Jagirdar is declared to be pucca tenant of Kl)udkhast lands of
Dwarkanath. From the impugned judgment it is clear that there are
plethora of precedents of Madhya Pradesh High Court that after the
abolition of the esi~tes under the Act the lands became joint family
properties which received approval from Anant Kibe & Ors. v.
Purushottam Rao & Ors., [1984] (Suppl.) SCC 175 relied on by Sri E
Bobde. Therein this court held that the combined effect of
ss. 158(1)(b) and 164 of the M.P. Land Revenue Code was that the
incident of impartibility and the special mode of succession by the rule
of primogeniture which were granted in terms of the grant of inam
lands under the Jagir Manual stood extinguished. Bhumiswami right
was conferred on the holder of the land i.e. Dwarkanath. ln Madhya F
Bharat Land Revenue and Tenancy Act, 1950 by operation of ss.
54(7), 69 and 82 the lands become the pucca tenancy of Bhumiswami
i.e. Dwarkanath. Therefore, the devolution of the right of pucca
tenancy is by succession opened to the appellants Nos. 1 and 2.
Accordingly we hold that Item 2, 3 and 5 of schedule 2 lands become
the properties of the appellants. G
Cash grant of item 1 in schedule 3 of a sum of Rs.6895.00 is to the
family; the respondent had already received maintenance as a Junior
member from the family and so he is not entitled again to a share
therein. The decree is accordingly set aside. Regarding item 2 by
operation of s. 18 of the Act the Jagirdar is entitled to it and that, H
.,
662 SUPREME COURT REPORTS ['.\'991] 3 S.C.R.
A therefore, the respondent had no share therein. The jewellery and
utensils being movable properties are separate and. personal properties
belonging to the appellants. Admittedly the respondent was given
jewellery at his marriage etc. Therefore, the jewellery and utensils are '·
not liable to partition. The decree for partition of them is set aside.
B
The appeal is partly allowed. The judgment and decree of the
trial court as confirmed by the High Court to the extent of all the items in
schedule l for partition in two equal shares and allotment of one such
share to the respondent is 'confirmed. The decree for partition of
schedule 2 and 3 and of the jewellery and utensils is set aside.
c The appeal is allowed to the above extent, but parties are
directed to bear their own costs.
Y.L. Appeal partly allowed.
\.
f-.
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