*
ANANT KIBE & ORS. .
ve . oe ‘
Y. PURUSHOTTAM RAO & ORS April 17, 1984
[D. ‘A. DEsal, A.P. Sen AND V. “BALAKRISHNA ERADI, W]
2 Madhya Pradesh Land Revenue Code 1959, s. 158(1) com plete extinction of inam rights [and conferral of bhumiswami rights—Inam dands became: bhumiswami lands ~Impartibility and devolution by survivorship by Tule of lineal Primogeniture lost. on
Words and Phrases—‘‘In respect of land held by him’ "Meaning 0 if Ss. 158 (D(b) Madhya Pradesh Land Revenue Code 1959,
,
In 1337 the late Maharaja Harihar Rao Holkar ‘made. a grant of an inam of a garden to the Priest of the Holkar family. The grant of inam was on Putra Pautradi Vansh Parampara condition by way of parvarish i.e.,.
maintenance,
The three appellants in the appeal were the legal heirs and succesgors of the grandson of the original inamdar,’and the Ist Respondent as the sole - survivor of the eldest male line of the Iast holder, the inamdar and as also the karta of the joint Hindu family.
The appellants-planitiffs instituted @ suit for partition and separate possession of their half-share in the joint family property ‘alleging that defendant No. Lin his capacity as the karta of the joint Hindu family wag in possession and mangenient of the joint family property, includiog the inam lands. Theclaim was contested by regpondents-defendants 1 and 2 who contended that the plaintiffs predecessor-in-interest had separated from the family by taking his share in the year 1917-18 and therefore the plaintiffs had no kind of right or title in the suit property and that the inam lands and the properties acquired from and out of the inam ‘being impartible in nature, the successionto which was governed by ‘the rule of linéal primogeniture, the properties exclusively belonged to defendant No. tand that the conferral of bhumiswami right on defendant No. 1 under S. 158(1)(b) of the Madhya: Pradesh Land Revenue Code, 1959 made fthe suit lands. his separate and exclusive property and itw was not part of the joint estate of ‘the undivided family. : .
The Additional District Judge held that the. inam Jands together with
. the property acquired from the income of the inam were ancestral impartible estate since the same had devolved {by survivorship by the rule of jinga -
, coparcepary property. [493E7 a
ANAND KIBE y. PURUSHOTTAM RAO _ 485 primpgeniture and. therefore constituted joint family property. and, that the. tule, of impartibtlity and the special mode of succession by the rule of. lineal primogeniture were nothing but incidents of the inam whiola ‘stood
. extinguished by 8. 158(1)(b).of ‘the Code. The Plaintifi’s claim for partition and separate possession to the extent of their half-share in. the plaint schedule properties and to mesne profits were. decreed.
On appeal, the High Court reversed the judgment’ of the Additional
District Judge with regard to the inam lands and the houses and other property - : acquired | out of the inam holding. The “High Court held that the plaintiffs
. i who. were the junior members of the family had no kind: of right or title, to. the inam lands except the right to mainfenance and that defendant No. 1, th#inamdar for the,time being, became the bhumiswami of .the suit lands
‘under S. 158(1)(b) of the Code’ which constituted his separdte property. The.
High Court however maintained the decree. of the Additional District Judge with regard to partition and separation of fhe plaintiffs’ share of immovable — props erty.
Allowing the appeal,
é
1959 ‘effected a complete extinction of the inam rights followed by simultaneous conferra} of bhumiswami tights. Every person, in respect of thie
"HELD: Lh ‘Ss. 158 (yb) of the Madhya Pradesh Land Revenue Code, :
land held by him in the Madhya Bharat region, as an inamdar, at the time: of the coming into force of the Code, became a bhumiswami thereof, and”
acquired all the rights and became subject to, all the liabilities of a. bhumisyami funder the Code, [493B] .
4, The words “in respect of land held by him” appearing i inS. (158)1)
(b) refer to the status and character of the tenure holder in relation to the holding on the appointed day. The accrual of the status of bhumiswami by such person was automatic and he acquired all the rights and became subject to all the liabilities conferred or imposed upon a “ bhumiswami by of under. the Code. {493C]
40. :3..0Oma combined reading of SS. 158(1) (b} and 164 the legal consequence that ensued was that the incident of the impartibility and the special mode of succession by the rule of ftimogeniture which we€e terms of the grant of gaam lands under the Jagir. Manual of the Holkar State stood. extinguished. After the conferment of bhumiswami rights, the- incidents and character of the tenure beame transformed the restrtctions placed thereon disappeared, and such, lands became capable of being held in joint ownership like any other
4, The conferral of bhumiswami Tights on the holder for the time being under §. 158(1)(b) of the Code in respect of ancestral inam lands necessarily enures to the benefit of all the members.of the joint family. [493F] ‘ _. |, 5, Impartibility is essentially a creature of custom. Here it is a term n of the grant. The junior members of a family inthe case of an ancient
~
’n ‘
486 SUPREME COURT REPORTS >. [1984] 3 sek.
4 . ae 4 ‘ - . . impartible joiat family estate take no “right in the property by birth and’ therefore have no right of partition having regard to the very nature of the -
_ estate that itisimartible. The.only incidence for joint property which still attaches to the joint family property is the right of survivorship which, of course, is not inconsistent with the custom of impartibility. [495D]
In the instant case, the incident of impartibility attached to inam
. Jands no longer exists by reason ‘of S. 158(1)(b) of the Code as they haye now _- become bhumiswami lands. The right of junior members of the family for maintenance is governed by custom and {not based upon any joint [right or ° interest in the Property ag co-owners. [495E] Fed -6. To establish that a family governed by the Mitakshara_ in whith there ig an 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 succession to the estate. [495H]
7. The impartibility of the tenure governed by the Jagir Manuat of the Holkar State and the rule ‘of -lineal iPrimogeniture governed by the * .Jagir Manual, Chapter 11, rules 2 and 3 did not per se destroy its nature as joint family property For render it the separate property of the last holder. s9.as to destroy the right of survivorship ; the estate its character of joint family property and its devolution was governed by -the devolution was governed by the rule of sucvivorship as modified by the rule of lineal primogeniture,
[495G}
Shiba Prasad Singh v. Rani Prayag Kumari Debi & Ors., LR (1931- 32) 59: 1A 331 and Nagesh Bisto Desai v. Khando Tirmal Desai, (1982) 3° SCR R 341, referred to:
CIVIL APPELLATE J URISDICTION : Civil Appeal ‘No. 491 of Appeal by certificate from the Judgment and Decree dated
. 2,5,1969 of the High Court of Madhya ,Pradesh, (Indore Bench) in Civil First Appeal No. 91 of 1962.
V.A. Bobde, S.D. Mudaliar. and 4.G, Ratnaparkhi for ‘the appellants. .
GL. Sanghi, DN, Misra and S. Sukumaran for the respondents.
The Judgment of the Court was delivered by
SEN, J. This appeal on certificate is directed against a judg: ment and decree of the Madhya Pradesh High Court dated May 2, 1969 substantially reversing the judgment and decree passed by the ‘third Additional District Judge, Indore dated June 18/ i9, 1962
*
¥ Bs
ANANT KiBE py. PURUSHOTTAM RAO (Sen, J.) oe 487 and dismissing the plaintiffs’ suit for partition and separate passess- jon of their half share of the suit properties detailed in‘ Schedule
‘A’ appended.to the plaint except with respect-to a house and the agricultural lands at «Ujjain. Duritg the course of the hearing the parties have come to a settlement and the terms of the compromise have been recorded. Nevertheless, the correctness of the judgment delivered by the High Court is open to serious doubt and as it involves a question of general importance, we proceed to record our views.
°
The facts giving rise to the appeal are as follows. The report of the Inam Commissioner discloses that in 1837 the late Maharaja
Harihiar Rao Holkar made a grant of an inam of a garden known as - Rambag in Kasba Indore admeasuring 15.62 acres to Abaji Ballal, the priest of the Holkar family on his representation that he was in service of the Huzur Darbar fora long period but had no garden
-at Kasba Pndore and was therefore finding it difficult in getting tulsi leaves and flowers for making offerings to the deities. The grant of inam to him was on Putra Pautradi Vansh Parampara condition
" by way of parvarish. It appears from the report that Abaji Ballai had ~ only one son named Laxman and he also had only one son named
. Raghunath Rao. After the death of Abaji’ Ballal be was succeeded. by
Laxman. It appears that Laxman represented in the year 1886 that he was entitled to hold as inam an area of 15.62 acres in Kasba Indore while the land in his possession was only 5.91 acres, the remaining area having been acquired by the Durbar and prayed for a grant of an area of 9.72 acres in exchahge. An inquiry was there- ~ upon-held and the claim was found to be true. By Durbar Order’, No. 9 dated December 14; 1888 the inamdar was given 9.72 acres of land in Mauja Palashiya Hana. It also appears that- the family built residential houses at Indore presumably out of the income of the inam and also acquired immovable properties at Ujjain consisting of a house and some agricultural lands. After the death of Laxman Rao, his son Raghunath Rao was recognized to be the inamdar.
sé
The common ancestor Raghunath Rao had three sons, Madhav Rao, Sadashiv Rao and Gopal Rao. Of these, Madhav Rao and Sadashiv Rao_ had’ pre-decased their father Raghunath
Rao. Madhav Rao died without leaving an heir while Sadashiy
_E eo.
488° . "SUPREME couRT REPORTS 7 [1984} 3.s.c.R.
XX
"Rao left a son Purushottam Rao. The third son Gopal Rao ‘diss appeared about an year before the death of his father Raghunath ~
- Rao and his whereabouts were not known till the news of his death » ih 1932 at the Secunderabad was received, after the death - of Raghunath ..Rao in 1928. On the death of Raghunath Rao, ~ the last Purushottam Rao being the sole survivor of the eldest
_ male_line of holder. became the’ inamdar and also, the karta of the .
joint Hindu family:
r
The suit out of which this appeal arises was instituted by. ‘the’ three appellants Anant, Govind and their mother Smt. Laxmi “Baj being the legal heirs and successors of Gopal Rao, as plain-, tiffs on December 12, 1955 for. partition and separate Possession, of their half share in the joint family property described in
Schedule ‘A” appended to the plaint against respondents 1 and 2 °
Pyrushottam Rao and his mother Smt. Rama Bai being defendants ,
J and 2, impleading Krishna Rao, the eldest son of Gopal Rao as defendant 3 because he failed to join them as a plaintiff in the ~ suit. -,Purushottam Rao in his capacity as the karta of the joint Hindu ©
“family was in possession and management of the joint: family ‘ property, including the inam lands at Kasba Indore and Mavja | _ Palashiya Hana. . The plaintiffs’ claim was contested by defendants .
j’and 2 Purushottam Rao and Smt. Rama Bai. They pleaded | inter alia that the plaintiffs’ predecessor-in-interest Gopal Rao had separated from the family by taking his share in the year 1917-18 and .. therefore the plaintiffs had no kind of right or title i in the suit properties that the inam lands and the properties acquired . from out of the inam being impartible in nature, the ~ succession. to which was governed by the rule a _ lifeal primogeniture, the properties exclusively belonged. to defendant No. 1 Purushottam Rao; and that the conferral of | bhumiswarni rights on respotident 1 under s. 158(1)(b) of the. Madhya Pradesh Land Revenue Code, 1959 made the suit lands his separate and exclusive property and it was not part of the’ joint. - estate of.the undivided family. Incidentally, the ‘Madhya Pradesh |
Land Revenue Code, 1959 was. brought into force w.e.f:. October, . 1, 1959 which had the effect of changing. the nature of the tenure.
_ ) The point in controversy in this appeal is now limited to the
The case ‘of the plaintifis was tkat- defendant No. 1 A r
“me
4+
ANANT KIBE ». PURUSHOTTAM (Sen, J) . 489 inam lands and the houses and other ‘properties built from.
out. of the income of the inam lands at Kasba Indore and Mauja .
the igcome of fhe inam were ancestral impartible estate since the same had. devolved by survivorship by the rule of: lineal peimogeniture and therefore constituted joint family property and
’ Palashiya Hana. The learned ‘Additional District Judge heldthat the inam lands together with the properties acquired from that the rule of impartibility and*the special mode of succession
Code by virtue of which the inam lands beddme bhumiswami, the succession to which was governed by the personal ‘law of the partiés, The.learned Additional District Judge accordingly held that the inam lands at Kasba Indore and Mauja Palashiya Hana constituted joint family property of. the parties and decreed. the plaintiffs’ claim for partition and. separate possession to the extent - of their half share in the properties described in Schedule ‘A’ to’ . the plaint afd to mesne profits thereof. On appeal, the High
Court reversed the judgment of the learned™“Additional District
Judge with regard to the inam lands and the -housés and other .
property. acquired at Indore ‘out of the :income.of the ‘inam holding that they constituted a special grant regulated by the
' Jagir Manual of the Holkar State, According to the High Court, the plaintiffs who were the _junior members of ‘the family had no. kind of right or title to the inam jJands except perbaps the right, of maintenance and that ‘too up to a certain degree and subject to its determination by the State. Accordingly the High Court held that defendant No. | Purushottam. Rao, the inamdar for the time being, became the bhumiswami of the suit Jands under s. 153(1) (b) of the Code which constituted his separate property. The High Court, however maintained the decree ‘of the learned Additional District Judge with regard to partition and separation of the plaintiffs’ share of immovable properties at Ujjain.
; The short and narrow question involved in this appeal is whether the inam lands which became bhumiswami lands under
B-458(1(b) of the Code were the self-acquired property of the inamdar and defendant No. 1 Purushottam Rao was entitled to or the conferral of bhumiswami rights in respect of such. inam
; bythe tule of lineal primogeniture were nothing but incidents of ° the inam which stood extinguished ‘by. s, 158(1)(b) of the
~ remain in full: and exclusive possession and enjoyment thereof, .
40 0s WV stipreme count REPORTS — 11984] 3 S.C.R lands. on him must. enure to the, benefit of ‘the. members of the joint Hindu family. and therefore the bhumiswami lands were liable to be partitioned like any other Coparcenary property.
Tt is common ground that the inam lands were. impattible,
* - the succession, to which was governed by the rule of lineal primo- geniture. ~That must be so because the Jagir Manual of the
7 Holkar State by r. 134 provides . ‘that the rule which refers to. -
. jagirs will apply ‘to inams also except to the’ extent’ modified by
Fe *
‘any Darbar Order or cingular. Chapter ii, r. 2 provides : :
“A Jagir grant shall be “indivisible’. and impartible Property." .
R. 3 provides for the rule of lineal primogeniture and it.
follows : _» 3, ‘Every: ast grant, which is not a purely. lifegrant, ‘shall descend i in the order of primogeniture ize. to the eldest male line of the last holder eg. If a grantee. has descendants as shown. in the following pedigree table : Fal
A (Grantee) ’ \ B Cc D | i G H Jt | | | | J E . F * i
. The Jagir will after A’s death descend to B. After ue B it will descend to E to Kn - ‘
Proviso to r.3 preserves | the right of maintenance of the
- junior members of the family and it reads :
“Provided that | the right of the members of the
, ” é x
_ ANANT KIBE p. PURGSHOTTAM (Sen, J.) ; | 491 junior branches, claiming descent from the original grantee to a share in the income of the Jagir or maintenance according to the custom, of the family or orders of the Government, shall not be affected thereby.” OS re)
Although the original sanad granted to Abaji Ballal in 1837 - is not forthcoming, the report of the Inam Commissioner discloses that the grant of inam to him was on Putra Pautradi Vanash
Parampara condition by way of parvarish i.e. maintenance. Thus — the grant of the inam lands was for maintenance of the “members , of a joint family and was also heritable.
“ss
There is ample evidence on record to show that the inam . lands although impartible were ‘always treated by members of the ° family as part of the joint family properties and the succession to the inam was by the rule of survivorship as modified by the rule of lineal primogeniture. It is- also clear that the junior members were in joint enjoyment of the inam lands and that was because the proviso to r. 3-expressly recognized their rights of maintenance.
Further, the evidence shows that the properties acquired by the © inamdar for the time being from out, of the income of the inam such as the two houses at Indore. and other properties were always dealt with as part of the joint family propertyg There is on record, aif application for mutation made by defendant No.1 Purtgho- | ttam Rao on December 15, 1928 (Ex.P-6) wherein he had stated that his grand-father had died on August 8, 1928 and therefore he prayed for substitution of the names of the legal heirs in the inam — - register, the material portion of which reads :
“T am his son’s son i.e. his grandson and as such his _heir. (A) Besides me the sons of my uncle i.e. (1) Krishna _ ‘Rao (2) Anant Rao and (3) Govind Rao are also his heirs; Besides us no other person is his heir (A).” - ‘ .
The prayer was that the names of all these heirs be substi- tuted. There is also an affidavit of Purushottam Rao dated Decem- ber 7, 1928 (Ex. P-5) regatding the death of his grand-father Raghunath Rao and it mentions that he had three sons viz, Madhav Rao, Sadashiv Rao and Gopal Rao. It was averred that Madhav
° ro
4923 . 7 - SUPREME CouRT RiboRrS [1984] 3 s.c. Re
- Raa who was ‘the eldest had “already” expired leaving no issue. ‘and his wife had also died and that the . whereabouts of Gopal Rao were not known since 34 or 4 years. It was stated that Gopal Raohad three sons viz. Krishna, Anant and Govind and all the three
" of themt.were minarse It then recites:' ‘All the thtee minor sons of Gopal Rao’were living jointly with me.” Purushottam Rao. examined as DW 24-has stated that the whereabouts of Gopal Rao | were not known wiien his grand-father Raghunath Rao was opefa--’
-, ted upon resulting in his death<in the hospital. When confronted: with'portion marked ‘AA’ io Ex. P-6 he unequivocally admitted. that fre. could nof deny the statement made therein. He however. went onto assent that the experiditure incurred by him on the: | * plaintiffs by way of maintenance was not. incurred by reason of their being. the nfembers of the joint family but because they had nb! fesources of their‘own and it’ was necessary to give them. ‘maintenance allowance under the Inam Rules. It i9 quite appa.
rént from the course of dedlings that the ge lands at Kasba’ Tidore and Mauja Palashiya Hana and other ‘Inam properties in
- . thé hands of the common ancestor Raghunath .Rao which devok:
ved upon defendant . No. Le Purushottam Rao were nothing but @ an ancestral impartible estate.
Under the scheme of -the Code there was a.drastic change
7 brought about not only in the nature of the tenure of inam lands ‘. but@lso in the mode of succession. S.158(1)(b) of the code — provides: - a . he te
| © 458.” Bhumiswami—(1)- Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and «shail have all the: rights and be subject to all the liabili- . . ties conferred or imposed- upon’ a Bhumiswami by or
¥
‘ ‘under this code, namely: > oo, .
(a) #x vee ge. ke
- Madhya Bharat region as-.a Pakka Tenant or as a Muafi- - _ dar, Inamdar, o1 or Concessional Holder, as defined i in the whe
+b). every person in respect of fand held by him in the . .
ANANT KIBE ¥, PURUSHOTTAM (Sen, J.) | 493
Madhya. Bharat Land Revenue and Tenancy Act, Samvat . 2007(66 of 1950)”;
- The plain language of s.158(1)(b) effected a complete extinction of the inam rights followed by simultaneous conferral of. bhumiswami rights. Every ‘person, in respect of the land hold by him in the Madhya Bharat region as an inamdar, at the time of the coming into force of the code, became a bhumi- -swami thereof, and acquired all the rights and became. subject to all the liabilities of a bhumiswami under the Code. The words
“in respect of land held by him” appearing in s,158(1)(b) refer to the status and character. of the tenure holder in relation to the holding on’the appointed day. The accrual of the status of bhumi- _ swami by such person was automatic and he acquiréd all the rights and became subject to all the fiabilities conferred or imposed _Upon a bhumiswami by or under the Code. Asa necessary corollary, he became subject. to the provisions of s.164. $.164.
provides that subject to his personal law, the intersest of a Bhumiswami shall, on his death, pass by ‘inheritance, survivorship or bequest, as the case may be. On a combined reading of ss.158(1}(b) and 164, the legal consequence that ensued was that the incident of impartibility and the special mode of succession by the rule of primogeniture which were terms of the grant of inam ‘lands under the Jagir Manual of the Holkar State, stood extinguished. After the conferment of bhumiswami rights, the incidents and character of the tenure became transformed and the restrictions placed thereon disappeared, and such- lands became capable of being held in joint ownership like any other coparcenary property.
It must logically follow that the conferral of bhumiswami rights on ~ the holder for the time being under s. 158(1)(b) of the Code in respect of ancestral inam lands: must necessarily enuge tothe - - benefit of all the members of the joint family.
; In our judgment, the view expressed by the High Court that the inam lands and the two houses constructed at Indore and other properties acquired from out of the income. of the inam exclusively belonged to. defendant No. 1 Purushottam Rao, the holder for the time being at the time when the Code was brought into force, can hardly be sustained. Since the decision of the Privy Council in Shiba Prasad Singh y. Rani Prayag Kumari Debi and Ors, it must.be taken as well-settled that an estate which is impartible by eustom cannot be said to be the separate or exclusive
—— ee aa
A) ER. (ISSR) 551. 4.334
= t
| 494 “SUPREME COURT REPORTS [1984] 3 s.cr,
. property of thé holder of the estate. Where the property is ances- tfal and the holder has succeeded to it, it would be part of the joint estate of the undivided: Hindu - family. In the following - illuminating passage Sir Dinshaw Mulla observes :
“The: keynote of the whole position, in their Lord- * ships view, is to be found. in the following passage in the judgment in the Tipperah© case : “Where a custom is proved to exist, it supersedes — the general law, which however, still regulates all beyond the custom.” a ‘
“Teapartibility is essentially a creature of custom. In the case of ordinary joint family property, the members of the family have (1) the right of partition; (2) the right-to
. ° Testrain alienatlons . by the head of the family -except for necessity, (3) the right of maintenance and (4) the right of survivorship. The first of these rights cannot — exist In the casé of an impartible estate, though ancestral from the very nature of the estate. The second is incompatible with the custom of impartibility as laid down in Sartaj Kumari’s case(*\ and the first Pittapur case®, and so -
- also the third as held in the second Pittapur case’, To this extent the general law of the ‘Mitaksbara has been super~ seded by eustom, and the impartible estate though ancestral is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right, therefore, still remains and this is what was held in Baijanth’s case™. Tq this extent the estate 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 a coparcener
' acquired by birth in joint family property no longer exist, ‘the birthright of the senior member .to take by survivorship still remains, Nor is this right a mere succession-is ‘Similar to that of a reversioner succeeding on the death
1. 12 MIA 523°. 2. CR(1883) 15 A 51.
3. LR(1869) 26 IA. 83 ~* 4, LR(1618) 45 TA 148
5. LR 49 1A 195 -
>
ANANT KiBE py. PURUSHOTTAM (Ser, J.) - 495.
‘of a Hindu widow to her husband’s estate. It is a right - which is capable: of beicg renounced and surrendered.
Such being their Lordship’s view, it follows that in order to establish that a family governed by the’. Mitakshara in which there is an impartible estate has ceased to be joint it is necessary to prove an intention, express or implied, on the patt-of the junior members of the family to renounce their right of succession tO the estate.”
The incidents of impartible estate. laid down in Shiba Prasad Singh's case and the law there stated have been reaffitmed in the subsequent decisions of the Privy Council and of this Court. It is not neecssary to refer to them as they have all been dealt with in arecent judgment ofthis Court in Nagesh Bisto Desai y. Khando . Tirmal Desai\, Impartibility is essentially a creature of custom. Here it isa term of the grant. The junior members of a jomt family in the case of ancient impartible joint family estate * take no right in the property by birth and therefore have no right of partition having regard to the very nature of the estate that it is impartible. The only incidence for joint property which still attaches to’ the joint family property is- the right of survivorship which, of course, is. not inconsistent with the
* custom of impartibility. The incident of impartibiliy attached to inam lands no longer exists by reason of s.158(1)(b) of the Code as they have now become bhumiswami Jands. The right of junior - members of the family for maintenance is governed by custom and not based upon any joint right or interest in the property as coownets. Incase of inams in the Holkar State Such right was again a-condition of the grant. In view of the authorities cited in ‘Nagesh Bisto Desai’s case, supra, it must be held that the inam lands though impartible were nevertheless joint family properties of © the parties. The impartibility of the tenure governed by the Jagir
Manual of the Holkar State and the rule of lineal primogeniture | governed by the Jagir Manual, Chapter II, rr.2 and 3 did not per se destroy its nature.as joint family property or render it the separate
' property of the last holder so asto destroy the right of survivore.
ship ; the estate retained its character of joint family property and its devolution was governed by the rule of lineal primogeniture. -
To establish that'a family governed by the Mitakshara in which, * there is an 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 succession to the estate,
1. [1982]3 SCR 341 oe c
AN : SUPREME COURT REPORTS — “L984 3508
, The learned Additional District Judge during. the course ‘of his judgment has held on consideration of the evidence that there was no partition insthe joint . family as alleged by defendants 1 and 2 and that - finding has not been. teversed by the High Court in . appeal ,
The learned Additional District J udge ‘has referred to several
_ well-known decisions. ofthe Privy Councit dealing with the inci-
. dents of an impartible estate, including that of Shiba Prasad Singh’s
-_ Case, supra, but the High Court surprisingly did not refer to: ‘any: ‘Ofte of them. He has also particularly referred tothe nature and inci-
‘ dence of a protected thekedari under -s.102 of the €:P.Latid
“ Revenue Act, 1917: and relied’ upon the decision of thé Privy ~~ Council in, Thakur Bhagwan Singh v. Darbar Singh! and also to “several decisions: of the Nagpur . and Madhya Pradesh High Coutts’ “and i in particular to Mani-Ram v. Ram Dayal‘? and Smt. Pilanoni “Janakram v. Anandsingh Sakharam'®’ where a similar question ardde. “He further felt thatthe principles laid down-by the Bombay High ~-Cpurt in Eingappa Rayappa Desai v. Kadappa Bapurno . Desai(’ - dealing with the Bombay Hereditary ‘Offices Act, 1874 holding tifat . a ‘watan lands stand in the: same. footing as ancestral: impartible - estate in a joint Hindu family passing by ‘survivorship from-one- “ line to another according to primogeniture, must govern the cage. The High Court declined to follow the long line of decisions ofthe * Nagpur and Madhya Pradesh High Courts ‘dealing with the protec- - ted the kedari tentire under s.109 of the C.P. Land Revenue Code,
1917 saying that they were ‘‘inapplicable” ‘to the case of jagir and
“inam properties which at no- time. were considered to be jofnt
~ family’ properties but constituted a.‘special kind of grant’ regulated -. by the terms of the grant or the rules governing the same. 1t- also
- déclined to follow the decision of the Bombay: High Court in
. Lingappa’s case, supra, because -it. did not “appeal” to the Coart . as it distinguished the decision of the Madras High Court in Sri : Pavu Janardhana Krishna Ranga -Rao Bahadur v. The State’ of -- Madras®\ “for reasons which did not appear to be sound”. Ieis
- difficult to sustain both on principle and precedent the view of the
(4) LR [1928] 551A 150, |
High Court that inam lands being impartible in nature, the: “succes:
- sign to which was governed by the rule of lineal primogenitute, the two houses constructed ‘at Indore arid other - properties acquired i " " @) ALR. 1960 MP 7. j (3) 1960 MPL J 962. - (4) TLR. 1940 Bom. 721, ~ (5) A.LR. 1953 Mad. 185. a - .
— we
ANANT RUBE y. PURUSHOTTAM (Sen. J.) 497
“ from out of the income of the inam ‘exclusively belonged to defen-. dant No.1 Purushottam Rao, the holder for the time being and
-gonstituted his separate property. In the former State Df Madhya-Pradesh, the existence of such and.impartible tenure was not unknown. The nature and incidence ofa protected thekedari tenure under s.109 .of the C.P. Land Revenue Act, 1977 came up for consideration before the Privy Council in Bhagwan Singh’s case, supra. The Privy Council observed that though the tenure of'a protected thekedari was impartible
‘and descended. by primogeniture and was made inalienable, and it was provided that only oné person atatime shall be entitled to .
succeed to such status, at the same time :
“The Act recognises that leasehold interests, though © . , impartible, may fievertheless be joint Family property of the thekedar and his family.”
This was in consonance with the view expressed by Sir Bipin Krishna Bose, Addl. J.C. in-Fagwa v. Budhram' that the
‘grant of a protected thekedari tenure to the eldest male member ofa family did not make the property his separate property: In
Narayan Prasadv. Laxman Prasad) J. Sen, J. hold that where .
protected thekedari rights in respect of a village were acquired out of joint family funds, the village would be joint family property and a member of the joint family would be entitled toa share in the theka and to be maintained out of it. -In Chandanlal vy. Push- kar raj'), Kaushalendra Rao, J. speaking for the Court observed :
“Tt has always been the accepted view that the grant of protected status to a thekedar did not make the theka
', the exclusive property of the person on whom the protec-
_ ted status is conferred,”
The learned Judge then referred to the decision of the
Privy Council in Bhagwan Singh’s case and-rejected the contention that the conferral of the protected status on one of the memibers destroyed the pre- existing rights of the other members of the
* family..- . In Sukhamboi & Anr. vy. Ramsharan Doma Sao and Ors(, Mudholkar, J. tried to draw a distinction between the present | rights and future rights of the members of the family and held that.
ay an while the juniot members have future or contingent rights such as dy (1913) 10 Nag. LR 64. (2) (1945)-Nag. LI 4291, (3) ILRi[1952] Nag. 318. (4). [1951] Nag. LJ 433.
498 SUPREME COURT REPORTS —=>_[1984] 3 S.c.R a right of survivorship, they have, apart from custom or relation- “an ship, no present tights as, for instance, a right to restrain — alienation or to claim maintenance. The decision of Mudholkar -
-J. in Sukhambai’s case taking a narrow anti restricted view of the . rights of the members of a joint Hindu . family to participate in
‘the present enjoyment and management of a protected thekedari tenure was however reversed on appeal by B.P. Sinha, C.J. and Hidayatullah, J. in Shiv Prasad Sao v. Sukhan Bai (Letters Patent
Appeal No. 19 of 1449 decided on December, 30, 1954) observing = mal : that if there was a family arrangement for the joint enjoyment of. © the theka {n the. past, it would bind not only the protected. thekedar~ for the time being but the whole family and so long as the family - , arrangement is not rescinded by the family itself, it must continue. _ The learned Judges considering the implications of 5. 109(1)(@)
of the Act observed : os
“The conferral of protected status does not disturb the rights of the members inter se though they may -not be recognised by the State. As between members the rights’ . , of any Particular member under the arrangement must continue.” ‘
“As regards the validity of arran ngements made by the co-sharers in.a theka dividing the property between themselves for beneficial enjoyment of the. thekedar, they said :
“From the year 1881 when all existing artangements i were to continue, down to this day when private parti- * tions and family arrangements have been. recognised as ‘binding on the “family, there is an underline/current:of ' - récognition of joint family status. Most of these villages, — ’ ‘when they were acquired, belonged, to a joint family and the intention in conferring protection was not to disturb arrangements but to recognise one member as a Thekedar . -and to restrain transfers and impose impartibilityand - y _primogeniture. Even though the Act of 1917 enacted | ‘ about private partitions and arrangements, the law was merely declaratory of family custom‘as is apparent from ~ a’persual of the various Settlements Reports.”
, The’ learned* Judges then added a word of caution : . of
“Under the C.P. Land Revenue Act, a protected status could be conferred not only upon Hindus but also . upon { Mustirs. erd ‘cthers.. The rules. cf im partitle we? .
: ANANT KIBE y. PURUSHOTTAM (Sen, J.) 499 estates as understood in Hindu law cannot, therefore, be made applicable and the analogy is apt to be misleading.”
Similar question arose in Mani Ram v. Ram Dayal, supra, and
Smt, Pilanoni Janakram vy. Anandsingh Sakharam, supra. The decisien in Mani Ram’s case is ofsome importance. Here, T.C. Shrivastava, J. had to consider thé impact of s.39{1) of the M.P. Abolition of Proprietary Rights (Estates Mahals, Alienated Lands) Act, 1951 which provided that where the proprietary rights held .by a protected thekedar vest in the State under s. 3, the Deputy Commissioner may reserve to such proprietor the rights of an occupancy tenant inthe whole or part of the home-farm land and shall determine the rent thereon. S. 39(2) thereof. provided that any person becoming an occupancy tenant under sub-s.(1) shall he a tenant of the State. The contention on behalf of the protected — thekedar who brought the suit was that by virtue of such settle: — ment he became the full and¥exclusive tenant thereof. The learned. Judge after referring to the decision of the Privy Council in . ’ Bhagwan Singh's case, supra, and the aforesaid decision of the High Court in Shiv Prasad Sao’s case, supra, reiterated that’ although .§, 109(1)(a) of the C.P. Land Revenue Act, 1917 provided that protected thekedari rights would descend by the rule of primoge- “niture and the thkea was impartible . in nature, the rights of the other members of the joint Hindu family in the theka continued thoufh they could not obtain a partition of the lands in the theka or claim to be in possession of any lands pertqining to the theka: He referred to the observations made in Shiv Prasad Sao’s case set out above and observed that it was. open to the protected thekedar to come to an arrangement with his co-sharers to divide the lands attached to the theka and’ such a family arrangement would be binding on the co-sharers. Repelling the contention based on s. 39
(1) of that Act be held that after the abolition of the proprietary rights in 1950, the rights of protected thekedars had completely disappeared and the statutory bar of impartibility and inali¢nability removed and therefore the lands which were joint family lands " subject to statutory restrictions assnmed the.character of normal joint family property free from the statutory-restrictions. In Smt. -Pilanoni’s case, supra, K.L. Pandey, J. held that although under _— al. (5) of the Sarangarh State Wazib-ul-erz there ‘was no right of partition given toathekedar gaontia, but it permitted joint and divided management of the bhogra lands attached to the theka
500: SUPREME COURT REPORTS —S—‘[19984] 38.0R., among the members of the family and though the State had reser»
- ved to itself under cl.(15) the right to induct a new thekedar who became entitled to the entire bhogra Jands in the village, the effect of the two provisions was that’. the State could not be bound by a partition effected among the members of the family by way or.a- family arrangement but it ‘would be binding on the members or the family, including the new thekedar who may have succeeded to the status of a thekedar gaontia. Asto the settlement of such bhogra lands with, the thekedar in raiyati rights under 8.54(1) of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alie- ‘ nated Lands) Act, 1951, the Court held that such settlement must enure to the benefit of thé bhogra holders under a family arrange- ment since the lands continued to be impressed with; the character of being joint family property.
The point in controversy really stands concluded by. the recent decision of this-Court in Nagesh Bisto Desai’s case, supra.
-” There, the question was whether the plaintiff being the holder for”
.. the time’ ‘being of the Kundgol Deshgat estate which was an impartible estate, the succession to which (was governed by the * rule of lineal ptimogeniture, was entitled to remain in full and exclusive possession and enjoyment of the watan. lands resumed - under s, 3(4) of the Bombay “Pargana & Kulkarni Watans
' (Abolition) Act, 1950 ands. 4 of the Bombay Merged Territories Miscellaneous Alienations Abolition Act;. 1955 ‘which had been regranted to him-as an occupant thereof under ss. 4 and 7: of the
Acts respectively. [twas held that the plaintiff’s contention ran. .
counter to the scheme of the Bombay Hereditary Offices Act, 1874 and was against settled legal principles, and that the Watans Act was designed to preserve the pre-existing ri ghts of the imembers of. the joint Hindu family. . The submission based. on. the alleged impartibility of watan property and~ the applicability of the ‘rule of lineal primogeniture. regulating succession to the estate was
Tejected ¢ onthe ground that it could not prevail as these being.
nothing more than the incidents of the watans stood abrogated. by s: 3(4) of the 1950 Act and s. 4 of the 1955 Act. It was held that the effect of the non-obstante clause in s. 3(4) of the 1950 Act.
; was to bring about a change in the tenure or character of the holding as watan lands but did not affect the other legal incidents:
of the property under the personal law and if the property belonged
-. to the joint Hindu family, then the normal rights of the memberg =~ e
ANANT KIBB p. PURUSHOTTAM (Sen, J.) . 501 - of the family to ask for partitigh were not in any way affected and therefore the re-grant of the lands to the watandar under s. 4(1) of the 1959 Act and's. 7 of the 1955 Act must ensure to the benefit
" of the entire joint Hindu family. That precisely is the position here,
Although under the Bombay Pargana & Kulkarni Watans (Abolition) Act, 1950 and the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955. there was at first an abolition of. watans and resumption of watan lands, followed by re-grant of such lands to the watandar as, an occupant under the Bombay Land Revenue Code, 1879, that hardly: makes a difference in principle. The only difference is that under $s. 158(1)(b) of the ’ MB. Land Revenue Code, there was a simultaneous extinction of the inams: resulting in conferral of. bhumiswami rights on every person holding inam lands on the date on which the Code was 8 brought into force.
The result ‘therefore is that the appeal must succeed and is allowed. The judgment and decree passed by the High Court are reversed and those of the learned Additional District Judge decrecing the plaintiff’s suit for partition and separate possession of their half share in the properties described. in Schedule ‘A’
- ‘to the plaint are restored. The decree shall be drawn in terms of the compromise arrived at. ' There shall be no order as to costs.
N.V.K. : . _ Appeal allowed.