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PETITIONER: MIRZA RAJA SHRI PUSHAVATHIVIZIARAM GAJAPATHI RAJMANNE SULTAN

       Vs.

RESPONDENT: SHRI PUSHAVATHI VISWESWARGAJAPATHI RAJ & ORS.

DATE OF JUDGMENT: 19/03/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. BEG, M. HAMEEDULLAH SHAH, J.C.

CITATION:  1964 AIR  118            1964 SCR  (2) 403  CITATOR INFO :  R          1970 SC1795  (11,15)  R          1975 SC 733  (6)  R          1981 SC1937  (29,31)  D          1982 SC 887  (20,22,23,24)  R          1988 SC 247  (20)  C          1991 SC1972  (22)

ACT: Hindu Law-Joint family-partition-Impartible  estateincidents of-Rule of incorporation-If applicable both to immovable and movable property-Family custom of impartiblity of  movables- Alienation,  power  of  holder-Statute  abolishing   estate, Buildings  incorporated  in  impartible  estate,  if  become partible--Madras Impartible Estate Acts, (Mad. II of  1902), (Mad.  II  of  1903) and (Mad  II  of  1904)-Madras  Estates (Abolition  and conversion into Ryotwari) Act, 1948 (Mad  26 of 1948), s. 18 (4).

HEADNOTE: The Vizianagram family was a joint Hindu family.  It   owned a  very  large estate which was impartible and  devolved  by primogeniture. At Various times the holder of the estate 404 acquired  other properties, moveable as well  as  immovable, some  of which were incorporated in the  impartible  estate. In  1948, the Madras Estates (Abolition and Conversion  into Ryotwari)  Act, 1948 was enacted and the Vizianagram  estate was taken over by the State.  The holder of the estate filed a  suit  for  partition  of  the  joint  family  properties, claiming  as impartible the estate as originally granted  to the  ancestors of the party together with certain  immovable properties  subsequently  acquired and incorporated  in  the original  estate  and certain jewels described  as  regalia. The suit was contested, inter alia, on the grounds that  the subsequently   acquired   immovable  properties   were   not impartible, that the theory of incorporation could not apply to  movables  and  that  even  if  the  buildings  had  been incorporated in the estate by virtue of s. 18 (4) of the Act they became partible. Held that the immovable property subsequently acquired which had  been incorporated in the estate originally granted  was

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also  impartible.  An ancestral estate to which  the  holder has succeeded by the custom of primogeniture is part of  the joint  estate  of the undivided Hindu  family.   Though  the other  rights enjoyed by member of a joint If  Hindu  family are inconsistant in the  case  of an impartiable estate  the right  of  survivorship still exists. Unless  the  power  is excluded by statute or custom,the holder   of      customary impartible  estate, by a declaration of his  intention,  can incorporate  with  the estate  his  self-acquired  immovable property  and  thereupon the said property  accrues  to  the estate  and is impressed with all its incidents including  a custom  of  descent by primogeneture In all such  cases  the crucial test is one of intention.  A holder of an impartible estate can alienate the estate by gift inter vivos, or  even by  a  will,  though  the  family  is  undivided;  the  only limitation on this power could be by a family custom to  the contrary or the conditions of the tenure which have the same effect.  The Madras Impartible Estates Acts, 1902-1901  have expressly   made   impartible  estates   inalienable;   this inalienability attaches not only to the estate as originally granted but also to the properties incorporated in it. Shiba Prasad Singh v. Rani Prayag Kumari Devi (1932)L. R. 59 I. A. 331, Rani Sartaj Kuari v. Deoraj Kuari (1888)L.  R. 15 1. A. 5 1, Venkata Surya v. Court of Wards, (1888) L.R.26 I. A.  83-Ram Rao v. Raja of Pittapur, (1918) L. R, 4.5  1.  A. 148 and Collector of Madras v. Mootoo Ramlalinga Sathupathy, (1868) 12, Moo. 1. A. 397, referred to. The  theory  of  incorporation does  not  apply  to  movable property.  But if a family custom is proved that a ceartain  405 Category of movable property is recognised by the family  as impartible  that  custom  would  be  recognised.   A  family custom, like any other special custom should be ancient  and invariable  and  must  be proved by  clear  and  umambiguous evidence.   In  the case of a family  custom,  instances  it support  of the custom may not be as many or as frequent  as in  the  case of customs pertaining to a territory or  to  a community.  In dealing with family customs, the consensus of opinion  amongst the members of the family, the  traditional belief  entertained  by them and acted upon by  them,  their statements  and  their conduct would all be  relevant.   The evidence  in the present case established that there  was  a family custom under which some of the ceremonial jewels were treated as forming part of the regalia which belonged to the holder of the estate. Ramalakhmi Ammal v. Sivanantha Perumal Sethurayar, (1872) 14 Moo.   I. A. 570 and Abdul Hussein Khan v. Bibi Sona  (1917) L. R. 45 1. A. 10, referred to. The buildings which had been incorporated in the  impartible estate were not made partible by s. 18 (4) of the  abolition Act.  The buildings falling within s. 18 (4) were vested  in "the person who owned them immediately before the  vesting". The  expression  "the person who owned" refers only  to  the landholder and not to other persons.  The fact that the word "landholder" was riot used in s. 18 (4) made no difference.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 170-177 of 1961. Appeals from the judgment and decree dated March 30, 1956 of the former Andhra Pradesh Court in 0. S. A. Nos. 129 and 131 of 1954 and 3 and 34 of 1955. G.   S. Pathak, P. Ram Reddy, V. V. Raghavam, K.  S.   Reddy

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and A. V. V. Nair, for the appellant (in C. A. Nos. 170  and 171 of 1961) and respondent No. 1 (in C. A. Nos. 1.72 to 177 of 1961). M.   C. Setalvad, C. K. Daphtary, SolictorGeneral of  India, S.   Mohan  Kumragamangalam,G.  Ramakrishna,   S.Mohan,   T. Suryanarayana 406 Murthy  and T.V.R. Ttachari, for   the appellant (in G.  As. Nos. 172 and 173 of 1961) and respondent No. 1 (in C.A. Nos. 170  and 171 of 1961) and respondent No. 2 (in C. As.   Nos. 174 to 177 of 1961). A.   V. Viswanatha Sastri, D. Y. Sastri and R.Gopalakrishnan for the appellants (in G. As.  Nos. 174 and 175 of 1961) and respondents  Nos.  3 and 4 (in C. As.  Nos. 170  to  173  of 1961) and respondents Nos. 4 and 5 (in G. As.  Nos.  170-177 of 1961). C.   B.  Agarwala and K. K. Jain, for the appellant  (in  C. As.   Nos.  176 and 177 of 1961) -and respondent No.  4  (in G.As.  Nos. 174-175 of 1961). 1963.  March 19.  The judgment of the Court was delivered by GAJENDRAGADKAR J.-This group of eight appeals which has been brought  to  this  Court with a certificate  issued  by  the Andhra  Pradesh High Court, arises out of a  partition  suit filed by the plaintiff Viziaram Gajapathi Raj II against his younger  brother Visweswar Gajapathi Raj, defendent  No.  1, his mother Vidyavathi Devi-, defendant No. 2, his uncle  Sir Vijayanand  Gajapathi Raj, defendant No. 3, and  his  grand- mother Lalitha Kumari Devi, defendant No. 4. The parties  to this litigation are members of the Vizianagram family  which owns  a  very large estate.  This estate is  impartible  and devolves  by primogeniture.  The relevant genealogy  of  the family which is set out at the end of -this judgment clearly brings  out the relationship between the parties, and  shows at a glance how the Vizianagram Estate was held by different holders  from time to time.  Narayana Gajapathi Raj  may  be regarded  as  the  founder  of  the  family.   His  son  who succeeded  to the estate on the death of his father in  1845 can  claim  to be the real maker of the  fortunes  -of  this family.  He managed the estate from 1845 to 1879 and  during the course of’ his management lie bought 407 a large amount of property, movable and immovable  including a large estate in and around Banaras.  At his death he  left behind  him  his  only  son Ananda  Gajapathi  Raj  and  his daughter  Appala  Kondayamba I. Appala Kondayamba  I  subse- quently became the- Maharani of Rewa.  Ananda Gajapathi  Raj died  issueless on May 23, 1897.  Before his death,  he  had executed  a  will  bequeathing all  his  properties  to  his maternal  uncle’s son Chitti Babu.  Later, on  December  18, 1897, Ananda Gajapathi Raj’s mother Alak Rajeswari I adopted Chitti  Babu  to  her husband so that as  a  result  of  his adoption, Chitti Babu became the adoptive brother of  Ananda Gajapathi  Raj who had executed a will in his favour  before his death.  It appears that Chitti Babu had been brought  up in  the  Vizianagram family and when  Ananda  Gajapathi  Raj executed  his  will,  it was anticipated  that  Chitti  Babu would,  in due course, be adopted by Alak Rajeswari 1.  Alak Rajeswari I died in 1901 after executing a will by which she gave  a life estate in her properties to her  daughter,  the Maharani  of  Rewa,  and the remainder to  the  Children  of Chitti  Babu.  On October 28, 1912, Chitti Babu  executed  a Trust  Deed  in favour of a trustee for the benefit  of  his minor  son Alak Narayana, subject to payment of  maintenance to  maintenance holders and payments due to  his  creditors. On  December 14,1912, the Maharani of Rewa died, but  before

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her  death,  she  had executed a will  bequeathing  all  her properties  to  Chitti Babu for life and  the  remainder  in equal  shares  to  Alak Narayana  and  his  younger  brother Vijayananda  Gajapathi Raj.  During Clitti Babu’s  life-time the Impartible Estate Acts passed by the Madras  Legislature in 1902, 1903 and 1904 came into force.  Chitti Babu died on September, 11, 1922.  On his death, Alak Narayana  succeeded to the estate. In  1935,  the Vizianagram Estate and the  other  properties belonging to Alak Narayana went under 408 the management of the Court of Wards and continued to be  in such   management  till  they  were  handed  over  to   Alak Narayana’s   son   Viziaram  Gajapathi  Raj,   the   present plaintiff, in 1946, Alak Narayana having died on October 25, 1937.  During the time that the estate was being managed  by the Court of Wards, Vijayananda Gajapathi Raj, defendant No. 3, made a claim before the Court of Wards for his half share in all the properties of Chitti Babu, except the  impartible estate.   The Court of Wards referred this claim to  Sir  D’ Arcy  Reilly, a retired judge of the Madras High  Court  for enquiry.   Sir  D’  Arcy accordingly  held  an  enquiry  and submitted his report to the Court of Wards.  Thereafter  the claim  of defendant No. 3 was settled by compromise  and  on October 9, 1944, defendant No. 3 executed a deed of  release in  favour  of the plaintiff and  Visweswar  Gajapathi  Raj, defendant  No. 1 who were then represented by the  Court  of Wards.  Under the terms of this release deed, defendant  No. 3  received  a  payment of a sum  of  Rs.  10,00,000/-and  a further  sum of Rs. 54,193/-and, in turn,  relinquished  all his  claims  to  any  share in  the  movable  and  immovable properties of Chitti Babu including properties which he  had alleged  were  joint  family properties.  That  is  how  the dispute between the plaintiff and defendant No. 2 on the one hand and their uncle, defendant No. 3 was amicably resolved. In  1948, the Madras Legislature passed the  Madras  Estates (Abolition and Conversion into (Ryotwari) Act, 1948 Mad.  26 of  1948) (hereinafter called the Act), and pursuant to  the material  provisions  of the said Act,  a  notification  was published  in August, 1949 by which the  Vizianagram  Estate was  taken  over  by the State as from  September  7,  1949. Since  the  taking  over  of the estate  by  the  State  was apprehended  to  lead to disputes between the  parties,  the plaintiff chose to file the present suit No. 495/1949 on the file of the High Court of Madras for partition  409 of  the joint family properties.  In this suit,  he  claimed that large     number   of   immovable  properties   and   a substantial    number of jewels were impartible,whereas  the other properties, both movable and immovable, were partible. The  High  Court of Madras passed a preliminary  decree  for partition  in  this  suit  on  September  11,  1950.    This preliminary  decree declared that the  plaintiff,  defendant No. 1 and defendant No. 2 were each entitled to 1/3rd  share in the partible properties of the joint family of which they were members along with the deceased Alak Narayana.  As  the law  then  stood, defendant No. 2 was not  entitled  to  any share in the agricultural properties of the family, and  so, in  the said properties plaintiff and defendant No.  1  were held entitled to 1/2 share each. After  the  preliminary decree was passed,  parties  put  in lists  of  properties and made their  respective  claims  in regard  to them.  It appeared that 1.06 items  of  immovable properties  were  in  suit and about 581  jewels  were  also involved in the controversy.  As we have already  indicated,

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the  plaintiff  claimed that in addition to  the  properties originally  granted  by the Sanad to the  ancestors  of  the parties,   certain  immovable  properties  which  had   been subsequently acquired had been incorporated in the  original estate by the holder for the time being, and so, they, along with  the original estate, must be held to be  impartible  ; similarly, he alleged that out of 581 jewels, 141 were items which  can  be conveniently described as  items  of  regalia which were not partible and as such, defendants 1 and 2  had no  share in them.  This claim was resisted by defendants  1 and  2 and that dispute naturally raised questions  both  of law and fact. At  this  stage, defendant No. 4 also  actively  joined  the dispute  by filing an  application(No. 4830/1950).  By  this application,  she  claimed  that some of the  items  in  the Toshakhana which 410 had been included in the suitconstituted her ’stridhan’ and were, therefore, notavailable for partition between the plaintiff anddefendants  1 and 2. According  to  defendant No. 4,the  number  of  jewels  to  which  she  was  thus entitled was 95.  She filed a list of those ornaments; 76 of these which were shown in Appendix A were, according to  her case,  given to her by her husband, and 19 which were  shown in  Appendix B were given to her by her parents.   Defendant No. 2 similarly set up a claim to 55 items of the  Jewellery as her ’stridhan’, where as the plaintiff wanted to  exclude 140  items  of  the  jewellery  on  the  ground  that   they constituted the regalia of the Zamindar and were impartible. On  these  pleadings, 15 issues were framed by  the  learned trial  judge before passing a final decree.  In  support  of their  respective contentions, the parties were  content  to rely  mainly on documentary evidence; except  for  defendant No.  4,  none  of them has stepped  into  the  witness  box. Defendant No. 4 was, however, examined on commission and she gave oral evidence in support of her claim. The learned trial judge held that tile estate was impartible by  custom while it was in the hands of  Viziaram  Gajapathi and  Ananda  Gajapathi  and  that  they  had  the  power  to incorporate subsequently acquired immovable properties  into the estate.  He found that when the estate became impartible tinder Act 11 of 1904, the provisions of the Act took within their  purview  all accretions to the estate made  prior  to 1897  which  had  been incorporated into  the  estate.   The question  as  to whether any of  the  subsequently  acquired properties  had  been incorporated in the  estate  was  then tried  by  him as a question of fact and in  doing  SO,  lie placed the onus to prove incorporation on the plaintiff.  He also  found  that  whatever  was an  integral  part  of  the impartible  zamindari  of Vizianagrarn before  the  notified date within the 411 meaning of the Act, including lands and buildings which  had been  incorporated with the zamindari, would be governed  by the provisions of the Act; the apportionment of lands  would be  governed  by  SS. 12 and 47 of  the  Act.,  whereas  the buildings  incorporated with the zamindari prior to the  Act would vest in the plaintiff after the notified date and they would  not  be partible.  In the result, the  learned  trial judge recorded his findings on the several issues and passed a  final  decree.   It is unnecessary to refer  to  all  the details  of the decree.  It would be enough merely to  state the broad items allotted to the parties which are in dispute before  us.   In regard to the claim made by  the  plaintiff that  140  jewels  constituted regalia,  the  learned  judge

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recognised  his claim in respect of 36 jewels  only.   Those jewels  were items 1 to 19, 23, 24, 26, 27, 46, 56, 57,  79, 80  108,  116,  124, 125, 126, 127 and 128  of  Appendix  A. Through oversight, the learned judge had also included  item No.  25  in this list, but it is conceded that  that  is  an error.   As  to  the  plaintiff’s  claim  that  subsequently acquired properties had been incorporated in the estate, the learned  judge upheld his claim in respect of the Prince  of Wales Market at Vizianagram, permanent lease-hold rights  in respect  of  nine  villages, and  the  Admirality  House  at Madras,  Waltair House and Elk 1-louse at  Ooty.   Defendant No. 4’s claim was partly recognised by the learned judge who passed  a  decree in her favour in respect of  15  items  of jewels  claimed  by her.  These were items 20, 45,  49,  54, 186,  203, 230, 348, 349, two of the gold anklets  in  items 364,  and  535  and  items 136,  138,  141,  and  297.   The reference to the items is according to the list made by  Mr. Sathianathan  (Ext.  P-157).  It is conceded before us  that this  list  included  three items in  Appendix  B  filed  by defendant No. 4, and since defendant No. 4 had conceded  the right of defendant No. 2 in respect of all the ornaments  in appendix   B,  the  inclusion  of  these  three  items   was erroneous.  In 412 other  words, defendant No, 4’s claim should be  treated  as valid  only in respect of 12 jewels under the decree  passed by the trial Court. This  decree  gave rise to four appeals  by  the  respective parties.  Plaintiff’ s appeal was No.   34/1955,   defendant No. 1’s 3/1955, defendant No. 2’s No. 129/1954 and defendant No.  4’s No.131/1954.  It appears that the last  appeal  was allowed  to  be withdrawn and instead, defendant No.  4  was permitted  to file cross-objections in regard to her  claim. These  appeals were, in due course, transferred to the  High Court of Andhra because as a result of the reorganisation of Andhra  State, it is the High Court of Andhra  Pradesh  that assumed jurisdiction over the subject-matter of the  dispute in these appeals.  Before the High Court, parties argued the same questions of fact and law and pressed their  respective claims.   The High Court has held that the trial  Court  was right  in coming to the conclusion that the Prince of  Wales Market and the permanent leasehold rights in respect of nine villages had been incorporated in the inpartible estate.  It has  also held that the trial Court was right  in  rejecting the  plaintiff’s contention that the Bungalow at  Ootacamund known,  as  ’Shoreham’ as well as the  Bungalow  at  Coonoor known as ’Highlands’ had been incorporated in the estate and were impartible.  The High Court, however, differed from the trial Court in respect of three Bungalows, Admirality House, Waltair  House and Elk House, and it came to the  conclusion that the plaintiff had failed to prove that these properties had   been  incorporated.   That  means  that  these   three properties  like the bungalow ’Shoreham’ at  Ootacamund  and the  Highlands  at  Coonoor were, according  to  the  Appeal Court, partible between the plaintiff and defendants 1 &  2. In  other words, the plaintiff lost in respect of  the  said three  properties  before the Appeal Court.   In  regard  to jewels, the Appeal Court has taken the views that items  129 and 3 60. in  413. addition  to  the  ’16 items covered by  the  trial  Court’s decree,  should  be held to constitute the  regalia  of  the zamindar.   That  means that the plaintiff’s claim  in  that behalf  succeeded to the extent of 38 jewels.  In regard  to the  claim  made  by defendant No. 4, the  Court  of  Appeal

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considered  her evidence and was not inclined to accept  her testimony  at all.  In the result, the decree passed by  the trial  Court  in her favour has been set aside.   Thus,  the plaintiff and defendants 1 and 2 partly succeeded before the Court  of  Appeal whereas, defendant No. 4 wholly  lost  her case. This  decision  of the Appeal Court has given  rise  to  the present  group of eight appeals.  Civil Appeals Nos.  170  & 171/1961 are by the plaintiff, C.A.  No.  172  &  173/1161 are, by defendent  No. 1, C.  A. Nos. 174 & 175/11961 are by defendant  No.  2 and C. A. Nos. 176 & 177 of  1961  are  by defendant No. 4. In his appeals, the plaintiff contends that the  Appeal Court should have recognised his claim to  treat the five buildings which are situated outside the limits  of Vizianagram  Zamindari as impartible; these buildings are  : the Admirality House, the Waltair House, the Elk House,  the little Shoreham and the Highlands.  He also argued that  the Appeal Court should have granted his claim in respect of 102 items  of  jewels which he alleged constituted  regalia,  In respect  of this latter claim, Mr. Pathak for the  plaintiff stated before us that he would confine his claim to 83 items of  jewels and even as to that, he did not press  his  case. The  plaintiff’s case was therefore, substantially  confined to these five house properties. In  their  appeals,  defendants  1  and  2  challenged   the correctness  of  the decision of the Courts below  that  the Prince of Wales Market was impartible and that the permanent lease-hold rights in respect of nine villages were also  not partible.   They also contended that the  Courts below  were in error in holding 414 that any jewels could be treated as regalia of the  Zamindar and  as such impartible.  According to them, none of the  38 jewels  should have been held to be  impartible.   Defendant No.  4  contends that the Court of Appeal was  in  error  in reversing the decisions of the trial Court particularly when the  conclusions recorded by the trial Court in  her  favour were based mainly on the appreciation of her oral  evidence. That,  in brief, is the nature of the dispute before  us  in this group of 8 appeals. Before  dealing with the dispute between the  plaintiff  and defendants  1  & 2, it may be convenient to  deal  with  the claim  of defendant No. 4. She is the widow of  Chitti  Babu and  the grandmother of the plaintiff and defendant  No.  1. Parties  have  agreed  before us that her  claim  which  was allowed  by the trial Court should be decreed in her  favour subject to the modification that the items in appendix B  in respect of which defendant No. 4 made a concession in favour of  defendant No. 2 should be excluded; in other  words  her claim should be confined only to 12 of the items decreed  by the  trial  Court in list A. This concession has  been  made unconditionally  by  the plaintiff and defendant No.  2  and conditionally  by  defendant No. 1. Mr.  Kumaramangalam  for defendant No. 1 stated that his client was agreeable to have the  decree  passed in favour of defendant  No.  4  restored subject   to  the  modification  just  indicated,  only   if defendant  No. 4 allows him to take his 1/4th share  in  the jewels allotted to her by this compromise arrangement.  This can be conveniently arranged, says.  Mr. Kumaramangalam,  if defendant No. 4 gets the jewels allotted to her share valued by  proper  valuers  and defendant No. 1 is  then  given  an option  to choose the jewels whose value would be  1/4th  of the total of the jewels of defendant No. 4’s share.  If this 1/4th  valuation  cannot  be worked  out  with  mathematical accuracy, adjustment can be made by payment of

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415 cash  by  one party to the other as maybe  found  necessary. Mr. Aggarwal who has appeared for defendant No. 4  expressly agrees  to  this condition.  Therefore, by consent,  we  set aside  the order passed by the Court of Appeal  and  restore the  trial Court’s decree passed in favour of defendant  No. 4,   subject  to  the  modifications  and  conditions   just specified. This compromise arrangement disposes of defendant No. 4’s appeals Nos. 176 & 177 of 1961. We would now revert to the dispute between the plaintiff and defendants  1  &  2. In dealing with  this  dispute,  it  is necessary  to  consider some points of law which  have  been argued before us.  The first point which must be examined is in  regard to the character of an impartible estate such  as that which the Vizianagram family owns.  Since the  decision Of  the Privy Council in Shiba Prasad Singh v.  Rani  Prayag Kumar  Debi (1), it must be taken to be wellsettled that  an estate  which is impartible by custom cannot be said  to  be the  separate  or exclusive property of the  holder  of  the estate.   If the holder has got the estate as  an  ancestral estate and he has succeeded to it by primogeniture, it  will be a part of the joint estate of the undivided Hindu family. In the illuminating judgment delivered by Sir Dinshah  Mulla for  the Board, the relevant previous decisions  bearing  on the subject have been carefully examined and the position of law clearly stated.  In the case of an ordinary joint family property, the members of the family can claim four rights  ; (1)  the  right  of partition; (2)  the  right  to  restrain alienations by the head of the family except for  necessity; (3)  the  right  of  maintenance;  and  (4)  the  right   of survivorship.   It is obvious that from the very  nature  of the  property which is impartible the first of these  rights cannot exist. The  second  is also  incompatible  with  the custom    of  impartibility as was laid down by  tile  Privy Councilin  the case of Rani Sartaj Kuari v. Deoraj  Kuari and the First Pittapur case-Venkata Surya (1)  (1932) L.R. 99 I.A. 331. (2) (1883) L,R, 15 I.A. 51: 10 All. 272. 416 v.Court  of  Wards(1).  Even the right of maintenance  as  a matter of right is not applicable as laid down in the Second Pittapur  Case-Ram  Rao v. Raja of Pittapur  (2).   The  4th right  viz.,  the  right  of  survivorship,  however,  still remains  and  it  is by reference to  this  right  that  the property, though impartible, has, in the eyes of law, to  be regarded   as   joint  family  property.    The   right   of survivorship  which  can be claimed by the  members  of  the undivided family which owns the impartible estate should not be  confused  with a mere spes successsionis.   Unlike  spes successionis, the right of survivorship can be renounced  or surrendered. It  also follows from the decision in Shiba  Prasad  Singh’s case  (3), that unless the power is excluded by  statute  or custom,  the  holder of customary impartible  estate,  by  a declaration of his intention can incorporate with the estate self-acquired immovable property and thereupon, the property accrues  to  the  estate  and  is  impressed  with  all  its incidents,  including a custom of descent by  primogeniture. It may be otherwise in the case of an estate granted by  the Crown  subject to descent by primogeniture.  As Sir  Dinshah Mulla has pointed out, questions of incorporation have  been dealt  with  in several decisions of the Board  as  well  as decisions  of  Indian  High Courts, but  the  competency  of incorporation  was  not challenged in any of  them.   It  is clear that incorporation is a matter of intention and it  is

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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 a holder that  an inference  can  be drawn about such incorporation.   In  all such cases, the crucial test is one of intention.  It  would be noticed that the effect of incorporation in such cases is the reverse of the effect of blending self-acquired property with  the joint family property. in the latter  category  of cases where a person (1)  (1889) L.R. 26 I.A. 83: 22 Mad. 383. (2)  (1918) L.R., 45 I.A. 148: 41 Mad. 778. (3) (1932)  L.R. 59 I.A. 331,  417 acquires  separate property and blends it with the  property of  the  joint  family  of which he  is  a  coparcener,  the separate   property  loses  its  character  as  a   separate acquisition  and merges in the joint family  property,  with the  result that devolution in respect of that  property  is then governed by survivorship and not by succession, On  the other  hand, if the holder of an impartible estate  acquires property  and incorporates it with the impartible estate  he makes  it  a part of the impartible estate with  the  result that  the  acquisition  ceases to be  partible  and  becomes impartible.   In both cases, however, the essential test  is one  of  intention and so, whichever  intention  is  proved, either by conduct or otherwise, an inference as to  blending or incorporation would be drawn. It  was urged before the Privy Council in the case of  Shiba Prasad  Singh  (1),  that  to allow  the  operation  or  the doctrine  of incorporation, would really give the holder  of impartible  estate a right to prescribe a customary rule  of succession  different  from that of the  ordinary  but  this argument  was rejected on the ground that "under  the  Hindu system  of  law,  clear- proof of usage", even if  it  be  a family  usage, "will outweigh the written text of  the  law, vide  Collector,  of Madura v. Mootoo  Ramalinga  Sathupathy (2).  "’The  power  to incorporated,  observed  Sir  Dinshah Mulla, "being a power inherent in every Hindu owner  applies as well to a customary impartible Raj unless it is  excluded by statute or custom".  It is, of course, true that Done  of the  considerations  which are relevant in  respect  of  im- movable  property, would apply to movable property  and  so, the  theory of incorporation cannot apply to  such  moveable property.   That,  however, is not to say that by  a  family custom movable property cannot be treated as impartible.  If a  family  custom is proved in the manner  in  which  family customs have to be proved that certain (1) (1932) L. R. 59 I.A. 331, (2) (1868) 12 Moo. I. 4. 397, 436, 418 category  of  movable property is treated by the  family  as impartible,  that  custom  will, no  doubt,  be  recognised. That,  broadly  stated,  is the position  of  Hindu  law  in respect  of  impartible  property  which  has  been  clearly enunciated in the case of Shiba Prasad Singh. There  is another aspect of this matter to  which  reference may  be made at this stage.  Prior to the decision  of  the, privy Council in the case of Ranis Sartaj Kuari   v.  Deoraj Kuari (1), it was always assumed that   a   holder   of   an ancestral impartible estate cannottransfer or mortgage  the said estate beyond his ownlife-time  so as to  bind  the coparceners,  except, of course, for purposes beneficial  to the  family and not to himself alone.  The reason  for  this view was that in a large number of cases impartible  estates were granted on military tenure, and so, if alienations were

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freely  allowed,. the purpose of the grant itself  would  be frustrated if not destroyed. ID 1888, however, this view was shaken  by the decision of the Privy Council in  Rani  Sataj Kuari’s  case (1).  In that case, the holder of  the  estate had  gifted 17 of the villages of his estate to  his  junior wife  and  the validity of this gift was questioned  by  his son.   The  son’s plea, however, failed  because  the  Privy Council  held that "if, as their lordships arc  of  opinion, the eldest son, where the Mitakshara law prevails and  there is the custom of primogeniture, does not become a  co-sharer with  his  father in the estate, the inalienability  of  the estate depends upon custom, which must be proved, or it  may be  in  some cases, upon the nature of  the  tenure".   This decision  was  again affirmed by the Privy  Council  in  the First Pittapur Case (2).  As a result of these decisions  it must  be taken to be settled that a holder of an  impartible estate can alienate the estate by gift inter vivos, or  even by  a  will,  though  the  family  is  undivided;  the  only limitation on this power would flow from a family custom to (1)  (1888) L.R. 15 I.A. 51: 10 All. 272. (2)   1889 L,R. 26 I.A, 83. 22 Mad, 383.  419 the  contrary or from the condition of the tenure which  has the same effect. Soon  after  these decisions were pronounced  by  the  Privy Council,  the Madras Legislature stepped in  because.  those decisions  very  rudely disturbed the view  held  in  Madras about the limitations on the powers of holders of impartible estates  in  the matter of making alienations  of  the  said estates.   That led to the passing of the Madras  Impartible Estates Acts 11/1902, 11/1903 and 11 /1904.  The Legislature took the precaution of making necessary enquiries in  regard to  impartible  estates within the State and made  what  the legislature thought were necessary provisions in respect  of the  terms  and conditions on which the  said  estates  were held.  It may be stated at this stage that the result of the relevant provisions of the Madras Acts is that the  question of  inalienability of impartible estates does not depend  in Madras  on the family custom, but is expressly provided  for by the relevant provisions of the statutes. We have already observed that the principle of incorporation does  not  apply  to movables and we have  noticed  in  that connection that it is only by proving a family custom that a class  of movables belonging to a family may be  treated  as impartible, The law in regard to the proof of customs is not in doubt.  As observed by the Privy, Council in the case  of Ramalackshmi Ammal v. Sivananth Perumal Sethurayar (1),  "it is  of the essence of special usages modifying the  ordinary law   of  succession  that  they  should  be   ancient   and invariable; and it is further essential that they should  be established to be so by clear and unamibiguous evidence.  It is  only  by means of such evidence that the Courts  can  be assured  of  their  existence, and  that  they  possess  the conditions  of antiquity and certainty on which alone  their legal title to recognition depends." In dealing with a (1)  14 Moo, I.A. 570, 420 family  custom, the same principal will have to be  applied, though, of course, in the case of a family custom, instances in -support of the custom may not be as many or as  frequent as  in the case of customs pertaining to a territory  or  to the community or to the character of any estate.  In dealing with  family customs, the consensus of opinion  amongst  the members of the family, the traditional belief entertained by them  and  acted upon by them, their statements,  and  their

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conduct  would  all  be relevant and it is  only  where  the relevant  evidence of such a character appears to the  Court to be sufficient that a specific family custom pleaded in  a particular  case  would  be held to be  proved,  vide  Abdul Hussain  Khan v. Bibi Sona Daro (1), It is in the  light  of these  principles  that we must now proceed to  examine  the rival contentions urged before us in the present appeals. On  behalf of defendants 1 & 2 it has been argued before  us that the effect of the provisions of Act 11 of 1904 is  that the properties covered by the Sanad alone can be held to  be impartible.  The Sanad which has been produced on the record of  this case (Ext.  P. 77) and which was issued on  October 21, 1803 shows that it confirmed the original grant of  1160 villages  to the ancestor of the parties before us  and  the argument  is that the properties acquired by the holders  of the Zamindari estate from savings made by them cannot  claim to  be impartible, We have already seen the genesis  of  the Madras Act 11 of 1904.  Section 2 (2) of this Act defines an ’impartible  estate’ as meaning an estate descendible  to  a single heir and subject to the other incidents of impartible estates  in  Southern  India.   Section  2  (3)  defines   a ’Proprietor  of an impartible estate’ as meaning the  person entitled  to  possession thereof as single  heir  under  the special custom of the family or locality in which the estate is  situated or if there be no such family or  local  custom under the (1) (1917) L. R. 45  I. A. 10,  421 general  custom  regulating  the  succession  to  impartible estates  in  Southern  India.  Section 3  is  the  principal section  of  this  Act  and it  Provides  that  the  estates included  in the Schedule shall be deemed to  be  impartible estates.  Section 4 (1) imposes restrictions on  alienations of impartible estates, and s. 4 (2) provides for permissible alienations.   With the other provisions of this Act we  are not  concerned.   The  Schedule  enumerates  the   zamindari estates  districtwise.  Mr. Setalvad contends that the  very fact  that  the Vizianagram estate is specified  tinder  two districts wherein its properties are situated, shows that it is only the property which was granted by the Sanad that  is intented  to  be  covered by  the  Schedule  and  therefore, governed  by section 1 of this Act.  If the holders  of  the estates have made subsequent acquisitions, they cannot claim to  be impartible, because they are outside the  Vizianagram estate  as described in the Schedule.  We are not  impressed by  this argument.  The fact that the Vizianagram estate  is shown  under  two districts is obviously  referable  to  the requirements of administrative convenience.  There can be no doubt that as a result of the enquiries made in that behalf, the  legislature was satisfied that certain estates  in  the State  of  Madras were impartible and  the  legislature  was anxious  to  declare  their impartiblity  and  to  prescribe restrictions on their alienations.  This became necessary as a  result of the Privy Council’s decisions to which we  have already  referred.   Therefore.  it  seems  clear  that  the Vizianagram estate included in the Schedule to this Act must be   deemed   to  include  all   the   impartible   property constituting   the   said   estate.    The   principle    of incorporation which has been recognised by the customary law has had its operation after the Sanad was granted and before the  Act of was passed, and if by the operation of the  said principle  subsequently  acquired Properties had,  in  fact, been  incorporated  by the holder of the zamindari  for  the time being with the impartible estate., that would 422

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have  formed  an integral part of the estate  and  would  be included  in  the  Vizianagram estate as  described  in  the Schedule  to  this  Act.   Whether  or  not  any  particular property not included in the sanad but subsequently acquired has been incorporated is a question of fact and it will have to  be  decided on its own inherits.  But it  would  not  be right  to contend that even if certain immovable  properties had been incorporated before this Act was passed, they would not  be included in the estate,as described in the  Schedule and  would, therefore, be outside the purview of  this  Act. Therefore, the argument that the effect of Act 11 of 1904 is to  prevent  the  plaintiff  from  making  any  claim   that subsequently  acquired  properties have  been  incorporated, cannot be sustained. The  next question which has been strenuously urged  by  Mr. Setalvad is in regard to the buildings which have been found to  have been incorporated with the imparible  estate.   Mr. Setalvad  contends that as a result of the provisions of  s. 18 (4) of the Act, defendants 1 & 2 are entitled to claim  a share in the buildings to which the said provision  applies. For deciding this question it is necessary to refer to  some of  the  definitions prescribed by s. 2 and  other  relevant provisions  of  the Act.  Before doing so, however,  let  us read  s. 18.  Section 18 (1) deals with  buildings  situated within the limits of an estate, which immediately before the notified  date, belonged to any landholder thereof  and  was then  being used by him as an office in connection with  its administration  and  for no other purpose, and  it  provides that  such buildings shall vest in the Government,  free  of all encumbrances, with effect on and from the notified date. Section  18(2)  deals with buildings which belonged  to  any such landholder and the whole or principal part whereof  was then  in  the occupation of any  religious,  educational  or charitable institution, and it provides that they  423 shall also vest in the Government, free of all  encumbrances from  the same date, There is a proviso to this  sub-section which  it is unnecessary to consider.  Section 18  (3)  then deals  with buildings which fell either under clause (i)  or clause  (ii)  on  July 1, 1947,but which had  been  sold  or otherwise transferred or ceased to be used for the  purposes specified  in clauses (i) and (ii) between July 1, 1947  and the  notified date, and it provides that in respect of  such buildings, their value shall be assessed by the Tribunal  in such manner as may be prescribed, and the Tribunal shall pay to  the Government such value from out of  the  compensation deposited  in  its office under s. 41, sub-s.  (1).   It  is common  ground  that the buildings in respect of  which  the present  argument  has  been  urged  fall  under  s.  18(4). Section 18(4) reads as under :-               "Every building other than a building referred               to  in  sub-sections (1), (2) and  (3)  shall,               with  effect  on and from the  notified  date,               vest  in the person who owned  it  immediately               before that date; but the Government shall  be               entitled :               (i)in  every  case, to  levy  the  appropriate               assessment thereon; and               (ii)in the case of a building which vests in a               person  other than a landholder, also  to  the               payments   which   such  person   was   liable               immediately  before the notified date to  make               to any landholder in respect thereof,  whether               periodically or not and whether by way of rent               or otherwise, in so far as such payments,  may

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             accrue due on or after the notified date." Mr. Setalvad suggests that the buildings falling under S. IS (4)  vest  in the person who owned them  immediately  before that date and that takes in the 424 members  of the plaintiff’s family. lie relies on  the  fact that according to the decision of the Privy Council in Shiba Prasad  Singh’s case, an impartible estate is  joint  family property  Revolution  to which is governed by  the  rule  of survivorship  and that inevitably makes the members  of  the family  owners of the said property in a theoretical  sense. The  right  of the members of the family to succeed  to  the property is not spes successionis, and so, they can claim to be  persons who owned the property along with the  plaintiff immediately  before the notified date.  In support  of  this argument, Mr. Setalvad has naturally relied on the fact that whereas  s. 18, sub-ss. (1) and (2) specifically refer to  a landholder, s; 18(4) does not use the word ’landholder’  but refers  to  the  person who owned  the  property,  and  this departure  is  intended to cover a larger class  of  persons than the landholder.  Prima facie, the argument does  appear to be attractive; but when we examine the matter closely  in the  light  of the definitions, it would be clear  that  the expression "’the person who owned" refers only to the  land- holder  and  no  other  person.  Section  2  (8)  defines  a landholder as including (i) a joint Hindu family, where  the right  to collect the rents of the whole or any  portion  of the estate vests in such family; and (ii) a darmila inamdar; and  s. 2 (12) defines a "principal landholder’  as  meaning the  person  who  held the  estate  immediately  before  the notified  date.  Now, if we bear in mindt he  definition  of the  word ’landholder’, it would be noticed that  the  joint Hindu family consisting of the plaintiff and defendants 1  & 2  cannot  claim  the  benefit of s.  18  (4).   It  is  the landholder  or the proprietor as defined under  the  earlier Act  of  1904 that is contemplated by tile  expression  "the person  who owned" in stubs. (4) of 18, Besides, if we  take into account s. 18 (4) where it is provided that in the case of  a  building  which  vests in  a  person  other  than  a, landholder, it would follow that the person who is specified  425 in s, 18 (4) must be a landholder and no other.  It is  true that  the legislature might well have used that word  in  s, 18(4) but the change  in the use of the relevant words in s. 18(40 does not, in our opinion, justify the argument that  a larger  class of persons is intended to be  included  within the said clause. There is also another aspect of this matter which points  to the same conclusion.  Section 43 of the Act provides for the apportionment  of  compensation  in  the  case  of   certain impartible  estates,  and  the  class  of  persons  who  are entitled to claim apportionment is limited by s. 45 (2)  (a) and  (b).   If  the  construction  for  which  Mr,  Setalvad contends is accepted, it will lead to this anomalous  result that  whereas  the  apportionment  of  compensation  can  be claimed by the narrower class of persons specified by s, 45, a  much larger class of persons would be entitled  to  claim the  benefit  of s. 18 (4).  That obviously could  not  have been  the intention of the legislature.  Therefore,  we  are satisfied  that the Courts below were right in holding  that defendants 1 and 2 cannot claim the benefit of s, 18 (4), That  takes us to the question as to whether, the  Appellate Court  was right in its conclusions on the issues raised  by the  contentions  of  the respective parties  in  regard  to incorporation of buildings in the impartible estate, In this

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connection,  we  will first deal with the  pleas  raised  by defendants  1  & 2. Mr. Setalvad contends  that  the  courts below  were  in error in holding that the  Prince  of  Wales Market  built  at Vizianagram forms part of  the  impartible estate.  This market was constructed by Vijayaram  Gajapathi in  1876 on a site which admittedly belonged to the  estate, It  appears  from the report submitted by  Mr.  Sathianathan that  when  Vijayaram Gajapathi returned  from  Banaras  and assumed charge of the estate from the District Collector, he set out 426 to  improve  the condition of the town,  Accordingly.  roads were  laid, drinking water which and tanks were  constructed and  hospitals,  schools  and  colleges  were  opened.    He recognised the need for a proper market, and so, in 1876 the formation of the market had been completed, The whole of the market  was sub-divided into four compartments--- the  grain market,  the timber market, the cattle market and  the  fish market.   The Municipal Council approved of the  opening  of this  new  market and directed the removal of all  the  then existing  markets  to the Prince of Wales  Market,  Evidence shows that the management of the market was entrusted to the Municipality  and was carried on under its supervision.   In the  courts below, reliance was placed by the  plaintiff  on several facts to show that this market had been incorporated into  the impartible estate by Vijayaram Gajapathi.  It  was pointed  out  that the Municipality  corresponded  with  the holders  of the Zamindari at all stages that the  income  of the  property  was  shown in the  Ayan  accounts,  that  the accounts  maintained  a distinction  between  Ayan  accounts which  referred to the estate and family accounts, that  the market  was  treated  as a unit  of  administration  in  the Zamindari  for the purpose of management and for  collection of  fees, that Government also treated the property as  that of the Samsthanam, that Mr. Sathianathan in his report  also took the view that the property belonged to the  Samsthanam, that  the occasion for the building was to  commemorate  the visit  of  the Prince of Wales to India in  1875,  that  the object of the building was to provide a public amenity along with others for the town of Vizianagram, the headquarters of the estate; that during the time that the Court of Wards was in  its  management,  it seemed to  treat  the  property  as forming  part of the impartible estate, and, on  the  whole, the  course of conduct shows that it was always  treated  as such.  Mr. Setalvad has no doubt quarrelled with some of the reasons given by the Appellate Court in support  427 of its conclusion that. the Prince of Wales Market had  been incorporated  in the impartible estate.  It may be  conceded that  some  of the reasons set out in the  judgment  of  the Court  of  Appeal  are  inconclusive.   But  there  are  two considerations  which have weighed in our minds  in  dealing with this aspect of the matter in the present appeals.   The first  consideration  is that the question as to  whether  a particular immovable property has been incorporated with the impartible  estate or not is ultimately a question of  fact; no doubt, the decisive test being one of intention, and both the courts have concurred in holding that the Market must be held  to have been incorporated with the impartible  estate. Besides, there are two outstanding facts in respect of  this Market which cannot be ignored.  It has been built on a site admittedly belonging to the estate, and it has been built to afford a public amenity to the citizens of Vizianagram.   It is  not  likely that in 1876 when this Market was  built  by Vijayaram Gajapathi he could have thought of the market as a

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profit  -yielding business; he must have thought of it as  a project  undertaken  by him in his capacity  as  a  zamindar responsible  for  the well-being of the citizens  of  Vizia- nagram  and in that sense, at the very time that he  thought of building the Market, he must have intended to treat  that as  part of the impartible estate.  That, in  substance,  is the  view taken by the courts below and we see no reason  to interfere with it. The  other  items  of properties in  respect  of  which  Mr. Setalvad has challenged the conclusions of the courts  below is  in regard to permanent leasehold rights in respect of  9 villages.  This is item No. 31 in issue No. 3 framed by  the trial  Court.   The villages in question are  :  Thummapala, Annamrajupeta,  Kottavalasa,  Abmativalasa,  Jammu,  Duvvam, Chintapallipeta, Seripeta, Manesam Sudha and Sujjangivalasa. These villages are held under a permanent Mustajari lease by Mr. Venkata Reddi.  Both 428 the  courts  below  have found that this Reddi  was  only  a nominee of the Vizianagram Samsthanam and that the leasehold interest  was an accretion to the estate.  In  our  opinion, the  conclusion  of  the courts  below  is  obviously  right because   a  bare  recital  of  the  relevant  facts   which terminated  in the acquisition of the said leasehold  rights by  Mr. Reddi would speak for itself.  These  nine  villages originally  formed  part of the properties  granted  to  the family by the Sanad.  It appears that some time before  1850 these villages were sold for arrears of peishchush and  they were  purchased by the Zamindar of  Bobbili.   Subsequently, the  purchaser filed a suit for establishing his  rights  in respect  of  the said villages.  Government  intervened  and brought  about  an  ambicable  settlement  between  the  two Zamindars.   This settlement (Ext.  P-112)  provided,  inter alia, that the said villages should be given on a  permanent mustajari  lease to Mr. Venkata Reddi and that the  Zamindar of  Vizianagram should execute a guarantee letter in  favour of the Agent in respect of the amount payable by the lessee. Pursuant  to  this term, the Raja of  Vizianagram  passed  a letter  to  the Agent on January 10, 1857.   The  purchaser, Raja  of Bobbili, also wrote a letter to the Agent  agreeing to withdraw the suit, and so, the lease came to be  excuted. Under  the lease, the bill mukta was fixed at  Rs.  22,568/- per annum.  There is also other correspondence in respect of this  transaction which shows that the Raja  of  Vizianagram treated  the  leasehold  interest as his own  and  was  very actively  interested in the transaction.  It was  presumably thought derogatory to the dignity of the Raja of Vizianagram that he should take a lease from the Raja of Bobbili.   Tile trust  deed executed by Chittibabu in 1912 also  shows  that Chittibabu recognised that the lease-hold rights formed part of the impartible estate and the conduct of the trustee  who took   up  management  of  the  estate  supports  the   same conclusion.   A  portion  of two of the  said  villages  was acquired by the Government  429 for  the  construction  of a railway  crossing  between  the village  of  Alamanda  and the  town  of  Vizianagram.   The proceedings taken for the apportionment of compensation show clearly  that the two rival claimants for compensation  were the  Raja of Bobbili and the Raja of Vizianagram,  and  that the  dispute  was settled on the basis that  the  lands  had reverted to the Vizianagram Samsthanam subject to the annual charge of Rs. 22,568/-.  It is common ground that all  these villages  are  surrounded by the other estate  villages  and that  the  officials  in their  correspondence  have  always

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treated the leasehold rights as forming part of the  estate. These  facts  clearly indicate that the  courts  below  were right  in accepting the plaintiff’s case that  the  villages formed part of the impartible estate. The  next  point  which  has been urged  before  us  by  Mr. Setalvad as well as Mr. Sastri on behalf of defendants 1 & 2 respectively  is  that the Court of Appeal was in  error  in holding  that  38  jewels can  be  created  as  constituting regalia  and as such, impartible between the  plaintiff  and defendants  1 & 2. It will be recalled that the trial  Court bad  upheld  the plaintiff’s case in respect of  36  jewels, whereas the Court of Appeal has added two jewels to the said list;  and  defendants  1 & 2  seriously  quarrel  with  the correctness of this conclusion. In  attacking the correctness of this finding, Mr.  Setalvad has argument that it is inappropriate to speak of regalia in connection with the Vizianagram family, because it was not a ruling family, and there could be no occasion for coronation as  such.   He has also urged that even if  there  was  some satisfacation  for installation while the  zamindari  estate was  in  existance,  after the abolition  of  the  zamindari estate  as  a result of the Act which was  passed  in  1948, there could be no occasion for any installation and the plea that certain jewels constituted regalia 430. must, therefore, be rejected.  It is true that the  original Sanad  (Ext.  P-77) granted to the ancestors of the  parties was in the nature of a grant for military service; but it is by  no  means  clear that as  zamindars,  the  family  never exercised what may euphemistically be described as power and authority of a ruling family.  In the first half of the 19th Century,  the  Saranjamdars and the Zamindars  who  received grants  from  ruling monarchs regarded themselves  as  petty chieftains or rulers and purported to exercise authority  in that. behalf over the villages granted to them.  In fact, we have  it in evidence that an installation ceremony was  held in  1992  and  it was stated at the Bar  that  it  was  also celebrated  in 1947 after the plaintiff  attained  majority. Besides   installation,  there  many  be  other   ceremonial occasions  on which jewels described as regalia may be  worn by  the holder of the Zamindari and his wife.  The  argument that   the   abolition   of  the   Zamindari   estate   must automaticallyterminate the customary impartibility of  the jewels which were treated as regalia by the family,overlooks the  fact that many times custom outlives the  condition  of things  which  gave  it  birth.  As  was  observed  by  Lord Atkinson  in  delivering  the opinion of the  Board  in  Rai Kishore Singh v. Mst.  Gahenabai(1), "it is difficult to see why  a  family  should  not  similarly  agree  expressly  or impliedly  to continue to observe a custom  necessitated  by the  condition of things existing in primitive  times  after that  condition  had  completely  altered.   Therefore,  the principle  embodied in the expression ’cessat  ratio  cessat lex’ does not apply where the custom outlives the  condition of  things which gave it birth." That is why we  think,  the contention   raised   on   the   ground   that   there   was no,justification for regalia in early times at all and  that if  initially there was any justification, it  ceased  after the abolition of the Zamindari Estates, cannot be upheld. (1) A. I. R. (1919) P. C. 100,  431 The main attack against the finding of the Court of  Appeal, however,  proceeds  on the basis that  Chittibabu  took  the whole of the estate as a devisee under the will executed  by Ananda Gajapathi Raj and not as an adopted son of  Vijayaram

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Gajapathi   Raj.   We  have  already  noticed  that   Ananda Gajapathi  had executed a will on July 23, 1896  bequeathing the whole of his property to Chittibabu and that  Chittibabu was  subsequently  adopted on December 18, 1897.   In  other words, the will of Ananda Gajapathi spoke from May 23,  1897 when he died and the argument is that before Chittibabu  was adopted by Alak Rajeswari, the property bequeathed by Ananda Gajapathi’s  will  had already vested in him  as  a  devisee legatee under the will.  That being so, even if some of  the jewels  belonging to the Vizianagram family were, by  family custom, treated as impartible, the said custom ceased to  be operative  and the property came in the hands of  Chittibabu free from the burden of that custom.  It has been emphasised before  us  that  in both the  courts  below,  parties  have proceeded  to  a trial on this basis and it is  urge(]  that once  the  full  significance  of  this  important  fact  is realised,  it  would be noticed that the  proof  of  eastern attaching  to the impartibility of the jewels  would  become very difficult. Thus aspect of the matter, it is urged,  has not  been  considered  by  the courts  below.   It  is  also contended  that Chittibabu was a minor until 1911  and  even after  lie  became  a  major  the  property,  seemed  to  be substantially under the control of the Maharani of Rewa  who was  a  creditor  of  the estate to  a  very  large  extent. Reliance is placed on a statement made in one of the letters of Chittibabu that lie had not seen the jewels of the family and  it  is  suggested  that  the-Court  would  need  strong evidence  in Support of the plea that Chittibabu  and  those who  followed  him  have by their-  conduct  furnished  such satisfactory  evidence about the custom of impartibility  as to  justify  the  plaintiff’s claim in  respect  of  the  38 jewels. 432 If at the time when Chittibabu got the estate under the will of  Ananda  Gajapathi  the jewels could not be  said  to  be impressed  with any family custom of impartibility, it  will be  necessary  to establish such custom  subsequent  to  the acquisition  of the property by Chittibabu and that,  it  is argued, has not been successfully done in the present case. On the other hand, though, technically, it may be true  that Chittibabu  must  be deemed to have got the  property  as  a devisee under the will of Ananda Gajapathi we cannot  ignore the  fact that Chittibabu was brought up in the  Vizianagram family and was adopted soon after Ananda Gajapathi died.  It is  remarkable that when Chittibabu had to face a  challenge to  his  title  in suit No. 18 of  19(13,  he  resisted  the challenge  by setting up his own adoption in support of  his title  and  when the said litigation ended in  a  compromise decree  in  appeal  No.114 of 1909 on   March12,  1913,  the plaintiffs  who  had  challenged  Chittibabu’s  title  fully admitted  the  validity  and the binding  character  of  his adoption   by  Maharani  Alak  Rajeswari  to  her   husband. Therefore,  it is perfectly clear that when Chittibabu  came in possession of the property and had to establish his title to it, he relied more prominently on his adoption than  upon the  will executed in his favour by Ananda Gajapathi.   When the circumstances under which the said will was executed and the  adoption  of Chittibabu which followed are  taken  into account,  the attitude adopted by Chittibabu can  be  easily understood  and  appreciated.   He was brought  up  by  Alak Rajeswari  from  his  childhood and  even  Ananda  Gajapathi anticipated that he would be adopted by Alak Rajeswari since Ananda  Gajapathi  had lost his wife, and had no  son.   The adoption deed executed by Alak Rijeswari clearly shows  that Chittibabu was treated as the member of the family from  the

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start.   Therefore, after Chittibabu entered family  as  the adopted  433 son,  all the members of the family believed that  the  line continued  without interruption and Chittibabu and  Maharani of Rewa and all others looked upon the property as belonging to the Vizianagram family which was then held by the adopted member  of  the family.  Even technically, the  adoption  of Chittibabu  would  relate back to the date of  his  adoptive father’s  death and in that sense a break in the  continuity of the line would be avoided.  But apart from this technical aspect  of the matter, we must have regard to  the  attitude adopted  by the parties and their course of conduct  at  the relevant  time  when  we arc dealing with  the  question  of family  custom.   The  argument urged by defendants  1  &  2 naturally  assumes  that  prior  to  the  death  of   Ananda Gajapathi  there  was a custom in the family  which  treated certain jewels as constituting the regalia of the  Zamindar. If  that is so, it would not be easy to accept the  argument that  by the death of Ananda Gajapathi, the past custom  was cut  as under and the arrival of Chittibabu on the scene  as an adopted son made a vital difference to the continuance of the  said  custom.  Chittibabu became a major in  1911,  was married,  had  children,  and the  family  grew  in  numbers thereafter  and  yet,  throughout this period,  as  we  will presently  point out, the parties aid not regard  Chittibabu as a stranger who had arrived at the scene by virtue of  the will  executed in his favour by Ananda Gajapathi, but as  an adopted  son of Vijayaram Gajapathi who continued  the  line and  held  the property subject to all  the  traditions  and customs  of the family.  It is true that in order to  uphold the plaintiff’s plea in respect of the 38 jewels, the  Court will  have to be satisfied that there is evidence in  regard to  the  conduct  of  parties  subsequent  to   Chittibabu’s adoption, but if evidence has been adduced by the  plaintiff in  regard to the conduct of parties subsequent to 1897  and that  evidence  otherwise  appears to  be  satisfactory  and cogent, it would be no answer to the effectiveness of 434 the said evidence to contend that Chittibabu got the  estate as  a devisee and not as an adopted son.  In the  matter  of the proof of family custom, it is not the technicalities  of the law that would prevail but the evidence of conduct which unambiguously proves that the parties wanted to continue the old  custom,  as  though Chittibabu who had  come  into  the family  by adoption had, in substance, got the  property  as such  adopted  son.  That is why we think the  courts  below were  right in not attaching undue importance to the  effect of  the  will  executed by Ananda  Gajapathi  in  favour  of Chittibabu. Let  us  then consider whether the evidence adduced  by  the plaintiff  is sufficient to prove the custom pleaded by  him in regard to the 38 jewels.  Sonic of this evidence is prior to  1897,  but  the  most important  piece  of  evidence  is subsequent  to  1897.   The  first  document  on  which  the plaintiff  relies  is the will of Ananda  Gajapathi  himself (Ext.  P-6).  In this will., Ananda Gajapathi bequeathed all his movable and immovable property- to Chittibabu subject to the other liabilities mentioned in the will.  In  describing the  properties  the  testator refers  to  the  movable  and immovable property of the Samsthanam as well as his personal property  together  with  all  rights,  titles,  privileges, honours  and insignias of the family.  It would  be  noticed that  the properties of the Samsthanam which are  impartible properties  are described as both movable and immovable  and

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that  shows that the testator recognised the existence of  a family custom which treated some movable properties as being impartible since they belonged to the Samsthanam. The  deed  of  adoption (Ext.  P-7) executed  in  favour  of Chittibabu  recites  the  material  facts  leading  to   his adoption  and  refers  to the  authority  conferred  on  the adoptive  mother  by  her husband to make  an  adoption,  if necessary, Alak Rajeswari  435 the  adoptive mother, executed a will on January  15,  1898, (Ext.  P-9).  In this will, she bequeathed her properties to her  daughter for her life and the remainder  to  Chittibabu whom she had brought up since his birth in her family and to whom  her  son  Ananda  Gajapathi  had  bequeathed  all  his properties.   On  December  14, 1911, the Maharani  of  Rewa executed  a  will  (Ext.   P-10).   This  document  is  very important from the plaintiff’s point of view.  By her  Will, the  Maharani bequeathed all her properties  to  Chittibabu. Paragraphs  5 & 6 of this will are relevant.  They  read  as under :               "5.  The Vizianagram Samsthanam owes me a  sum               of  about  17 lakhs of rupees out of  which  9               lakhs  represent the amount of loans  which  1               have  made  to  the  Samsthanam  and  8  lakhs                             represent  part of the legacy due to me  under               the  will of my deceased brother which  sum  1               have  also  lent to the  Samsthanam.   My  own               jewellery   is  considerable.   It   comprises               jewels  given  to  me by  my  father,  mother,               brother  and  by my husband as well  as  those               purchased  by  myself.  As regards  the  state               jewellery  in  my possession such  as  Sarpesh               Nakshatra joth, jayamala, Emeralds  Bhjuaband,               Diamond   Bujuaband  and  emerald  and   pearl               necklace  in the central pendant on  which  is               inscribed  the name of my mother  in  several’               languages,  it  is  part  and  parcel  of  the               Samsthanam  and  impartible  and   inalienable               property.   The State jewels are  Regalia  and               heirlooms of the family of Vizianagram passing               along with and as part of the estate.               6.I   hereby  bequeath  all  my  movable   and               immovable  properties subject to  the  several               legacies and directions herein               436               contained, to Chittibabu Vizia Ramaraju, Rajah               of Vizianagram for his life only on  condition               that he abides by the provisions of this  will               and that he does not alienate and keep  intact               all  the  State  jewellery  as  well  as   the               following  jewels  of mine.  (1)  Necklace  of               emeralds  and  diamonds (2) diamond  and  gold               bangles  used  by  me  which  I  wish  to   be               preserved along with state jewels." These paragraphs show that the Maharani who was the creditor of  the  Samsthanam for such a large amount of 17  lakhs  of rupees,  was very much interested in good management of  the properties  of  the Samsthanam and her  relations  with  the Samsthanam  and Chittibabu in particular were very  cordial. Paragraph 5 shows that as a security for the loan which  she had advanced to the Samsthanam, certain jewels had been kept with her.  Out of these jewels, she described five jewels as constituting State Regalia; they are Sarpesh Nakshatra joth, jayamala,  Emerald Bujuaband, Diamond Bujuaband and  Emerald

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and  Pearl  necklace  in the central  pendant  on  which  is inscribed the name of her mother in several languages.   The first  of  these five has not been identified but  the  four others  have  been  identified  and  these  four  have  been described by the Maharani as forming part and parcel of  the Samsthanam  and impartible and inalienable property.  It  is true  that  by  paragraph  6  she  purports  to  impose   an obligation  on Chittibabu not to alienate the said items  of State jewellery as also two jewels of her own which she  had specified  in the said paragraph.  Now, it is clear that  at the  time  when this will was executed by  the  Maharani  of Rewa,  there  was  no  dispute  pending  in  regard  to  the existence   of  any  State.jewellery;  her  relations   with Chittibabu  were good and the statement that certain  jewels formed part of the State jewellery was not in her  interest. In fact, she was  437 disposing  of all the property in favour of  ChittiBabu  and the statements made by her as to the existence of the  State jewels  can,  without  any difficulty, be taken  to  be  the statements  bona fide made by a person in her  position  who had  ample  means of knowing the family traditions  and  who was, besides, actually supervising the administration of the estate.   Both the courts below have naturally  relied  upon this  statement  in support of their  conclusion  that  even after ChittiBabu was adopted the family tradition and custom of  treating  certain jewels as impartible was  adopted  and continued. The  deed  of trust executed by Chittibabu  on  October  28, 1912,  merely shows that he recognised the existence of  two kinds of property, one belonging to the Zamindari which  was impartible  and the other which was partible.  We will  have occasion to refer to this document later in dealing with the points raised by the plaintiff in his appeals. The  next important evidence in support of  the  plaintiff’s case is furnished by the conduct of defendant No. 3 when  he made  a claim for partition before the Court of  Wards.   In his statement of claims defendant No. 3 clearly admitted the existence  of jewellery which was treated as State  regalia. The  effect  of this admission  cannot  be  under-estimated. Defendant No. 1 a as the junior member of the generation was asking  for his share and since the property in question  is of a very large magnitude, it is not possible to assume that defendant  No. 3 did not consult his lawyers before he  made his  claim  and yet he expressly admitted the  existence  of certain  jewels which, by the tradition of the family,  were treated  as  State Regalia and, therefore,  impartible.   We have already seen that he was paid more than Rs. 10 lakhs in satisfaction  of his full claims and thereafter he passed  a deed  of  relinquishment  in favour  of  the  plaintiff  and defendant No. 1. 438 During the course of the management of the estate the  Court of  Wards made a survey of the Vizianagram estate  jewellery in  1946 (Ext.  P-160).  In that behalf the Court  of  Wards issued  instructions  pointing out to the existence  of  the ceremonial  jewellery and suggested.that the said  jewellery should  be  reduced  to the  minimum  really  necessary  for ceremonies hereafter according to modern standards.   During the  course of this survey, defendant No. 2  contended  that jewellery  intended to be worm on various occasions  by  the ladies,  men  or  boys  of the family  formed  part  of  the impartible  estate and descended to the holder of  it.   The survey  report  also  shows that the  ornaments  which  were claimed to be regalia and intended for ceremonial use  were,

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in fact,  kept  together  with the kiritam  and  its  pattam which are admittedly ceremonial.  Therefore,we are satisfied that, on the whole, the courts below were right in coming to the  conclusion  that both prior to 1897 and  subsequent  to 1897  when Chittibabu was adopted,the family has always  and consistently treated some ceremonial jewels as forming  part of the regalia which belonged to the holder of the Zamindari estate. That  naturally  raises the question about the  identity  of these  jewels, and the finding recorded by the Appeal  Court in  this  matter rests principally on  two  documents.   The first  is the will executed by the Maharani of Rewa and  the other  is an entry in the list of jewels made by Mr.  Fowler which  has  been  signed by Mr.  V.  T.  Krishnamachari  and defendant  No.  4.  We have seen how the  Maharani  of  Rewa referred  to  five jewels constituting the  regalia  of  the Zamindari Estate.  The list signed by Mr.V.T. Krishnamachari and  defendant  No.  4 shows that on  the  occasion  of  the installation ceremony of Alak Narayana Gajapathi which  took place on September 29, 1922, ornaments described as 1 to  19 were taken out.  The entry begins thus : "Taken out for  the installation ceremony on the 29th September" and then  430 follows the list.  Both the courts below have held that this list  shows  that the jewels and articles specified  in  the list were treated as regalia and were intended to be used on ceremonial  occasions.  That is why treating this  list  and the will of Maharani of Rewa as the safe basis, the Court of Appeal has come to the conclusion that 38 jewels claimed  by the plaintiff must be held to be regalia and not subject  to partition.  It has been urged before us that it is not shown when the ornaments mentioned in the will of Maharani of Rewa or Krishanamachari’s list were actually purchased and it  is argued  that  unless it is shown that these  ornaments  were purchased long before 1911 or 1922, it would be difficult to impress upon them the character of impartibility.  We do not think that this argument is well-founded.  The family custom may  well be that ornaments which are treated  as  essential for  certain  ceremonial  occasions  like  the  installation ceremony, or other auspicious ceremony in the family,  would be  impressed  with the character of  impartibility  and  in order  that  the  custom should succeed, it  is  not  always necessary that they must have been purchased long before and must have been used as such for a fairly long time.  As  the courts  below have observed, the character of most of  these ornaments  is such that they would be needed  on  ceremonial occasions.  Besides, it is not unlikely that these  articles which  were taken out on September 29, 1922, may  have  been kept separately together.  It is also pointed out that  some of  the articles mentioned in the list, such as serial  Nos. 7, 10 and 11, are now treated as belonging to defendant  No. 2, and the same comment is made in respect of ornament No. 5 described  in paragraph 5 of the will of Maharani  of  Rewa. It   must,  however,  be  remembered  that  though   certain ornaments  may  have  been treated as regalia  and  as  such impartible,  there was nothing to prevent the holder of  the estate  from making a gift of these ornaments to members  of the  family.   If,  for  instance,  one  of  the   ornaments mentioned in paragraph 5 of 440 Maharani’s  will  was gifted to the daughter-in-law  in  the family,  that will not necessarily disprove the  recital  in the  will that the said ornament formed part of the  regalia of  the Zamindar.  We are free to confess that the  evidence about  the identity of the jewels which can be safely  taken

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to  constitute regalia in the present case, does not  appear to  us to be as satisfactory as it should have been; but  we are reluctant to interfere with the conclusion of the  Court of  Appeal,  because  in our  opinion,  the  evidence  fully establishes the existence of custom in the family even after Chitti  Babu  was adopted which treated  certain  ceremonial jewels  as constituting regalia.  Now, which items of  these jewels and ornaments were treated as impartible by custom is a  pure  question of fact.  In regard to 36 out  of  the  38 jewels,  both  the  courts have  held  concurrently  against defendants  1  & 2 and in favour of the  plaintiff,  and  in respect of the two jewels which have been added to the  list by  the Court of Appeal, viz., items 129 and 360, the  Court of Appeal has proceeded on the basis that the recital in the will  of Maharani of Rewa should not have been  rejected  by the  trial Court because there was no corroboration  to  it. On the whole, we do not think that a case has been made  out for our interference with the conclusion thus reached by the Court of Appeal. The  result is, the appeals preferred by defendants 1 and  2 fail and are dismissed. That leaves the plaintiff’s appeals to be considered and  in these appeals, Mr. Pathak has confined his arguments to  the 5 bungalows owned by the family which are outside the limits of the Vizianagram Zamindari.  The trial Court has held that three  out of these 5 bungalows had been  incorporated  into the impartible estate, whereas the Appeal Court has differed an  that point.  In regard to the two other bungalows,  both the courts have found against the plaintiff.  The Admirality House was  441 purchased  in  1891  by Ananda Gajapathi for a  sum  of  Rs. 20,000/-.   Some other plots forming part of  that  property were  purchased by him later.  The bungalow at  Waltair  was purchased  in 1861 by Vijayaram Gajapathi for  Rs.  7,000/-, Elk House at Ootacamund was; purchased in 1889 for a sum  of Rs. 60,000/-, and Shorham at Ooty was purchased in 1892  for Rs.18,000/ whereas the Highlands at Coonoor was purchased in 1896 for Rs. 75,000/-.  The Court of Appeal has held that in regard  to all these bungalows, the evidence of  conduct  is wholly  ambiguous  and  there  is  no  circumstance  of  any significance   from   which  the   plaintiff’s   theory   of incorporation can be legitimately inferred.  These bungalows are no doubt built outside the Zamindari Estate and they are built  in places of importance, such as headquarters of  the estate  or headquarters of the district or a  hill  station. It  may  be  that  the Zamindar  used  to  reside  in  these bungalows  according  to  his  convenience  but  it  is  not suggested  that  the junior members of the family  were  not staying  along  with him and so, the course  of  conduct  in regard  to the use of these bungalows can hardly assist  the plaintiff’s  case  of incorporation.  No  doubt,  the  trial Court had held in favour of the plaintiff in respect of  the Admirality  House, the Waltair House and the Elk House,  but as the Court of Appeal has pointed out, the said  conclusion of  the trial Court was based more on presumptions  than  on reliable  evidence.  In fact, the trial Court  had  observed that  the desire that the Zamindar should own his  residence at  each  of these three places is  certainly  intelligible, particularly if the problem is considered with reference  to the views that should have prevailed among the Zamindars  of that class towards the end of the 19th century; and it added that  it should even be possible to co-relate the  residence of  the Zamindar with the use of the building for  Zamindari purposes,   a   test  which,  if  satisfied,   would   prove

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incorporation.   While proceeding to deal with the  question on this 442 basis, the trial Court did not think it necessary to require that the plaintiff should have adduced some evidence to show that  Zamindari  business  was transacted at  any  of  these buildings  and it concluded with the observation that  there was  nothing in the evidence on the record to  indicate  any contrary  intention on the part of Ananda Gajapathi or  even that of his successors, though the intention of the  succes- sors  may not be so very material as evidence.  It is  clear that this approach adopted by the trial judge of placing the onus partly on the defendants is clearly erroneous.  We are, therefore, not inclined to interfere with the conclusion  of the  Court  of Appeal in regard-to the  three  bungalows  in question.   In regard to the two remaining  bungalows,  both the  courts below have made concurrent findings against  the plaintiff  and  we see no reason to allow the  plaintiff  to challenge that finding on evidence before us. Realising  this  difficulty, Mr. Pathak based  his  argument mainly on the construction of the deed of trust executed  by Chitti Babu.  He urged that this document shows that  Chitti Babu wanted to incorporate these buildings in the  Zamindari estate.   For  the purpose of raising this  contention,  Mr. Pathak  conveniently assumes that the properties dealt  with by  the  deed  of  trust were  the  separate  properties  of Chittibabu  since  the said properties had devolved  on  him under  the  will  of  Ananda  Gajapathi;  otherwise  if  the properties  in  question were ancestral  properties  in  the hands  of  Chittibabu  it was realised by  Mr.  Pathak  that Chitti  Babu could not make any incorporation in respect  of them.   We  have already noticed that in  dealing  with  the question  of the impartibility of 38 jewels, Mr. Pathak  was constrained  to  contend that though, in law,  the  will  of Ananda  Gajapathi bequeathed all the properties  of  Chitti. Babu, in fact Chitti Babu got them as an adopted son in  the family and not as a devisee under  443 the  will.   We have already dealt with this aspect  of  the matter.  We are referring to it again at this stage in order to  emphasise  the  fact that the attitude  adopted  by  the plaintiff  in  supporting his case of incorporation  of  the buildings into the impartible estate on the strength of  the trust  deed executed by Chitti Babu is not  consistent  with his attitude in regard to his case as to jewels.  But  apart from  this aspect of the matter, it seems to us  clear  that the trust deed does not support the theory of  incorporation on which Mr. Pathak relies.  By this trust deed, the settlor appointed  Mr.  John  Charles Hill Fowler as  a  trustee  to manage  the  estate on behalf of his minor eldest  son  Alak Narayana  Gajapathi.   For the purpose of dealing  with  Mr. Pathak’s  argument,  it  is not necessary to  refer  to  the scheme of the document; it would be enough if we mention the two clauses on which Mr. Pathak relies.  In the preamble  to the  document,  the  settlor  says that  he  is  seized  and possessed of or entitled to as for an estate of  inheritance all  that impartible estate and zamindari descendible  to  a single heir according to the law and custom of primogeniture applicable  to  similar  estates  in  Southern  India   more particularly  described in the First Schedule  and  commonly called the Vizianagram Zamindari or Samsthanam and also  the various  other  properties  situated  in  the   presidencies specified.  In other words, the preamble refers to the whole of  the  property consisting of the  impartible  estate  and other  properties,  and  that would take  in  the  houses-in

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question.  Then the settlor provides that he is settling the properties in trust in the manner mentioned in the  document for  the benefit of his eldest son "so that he may have  the same  kind  and nature of estate right and interest  in  the said  Zamindari, its accretions and appurtenances and  other properties  hereby settled upon him as he would have if  the same were now to devolve upon him from the settlor by  right of  inheritance  according  to the said law  and  custom  of primogeniture subject, nevertheless, to the payment of 444 maintenance and other allowances to the Raja and some  other members  of the family as hereinafter provided and  for  the purpose of providing for the payment of all the creditors of the said settlor as hereinafter mentioned." The argument  is that by creating a trust in favour of his eldest minor  son, the   settlor  has  incorporated  all   the   non-impartible immovable  properties  into  the Zamindari  subject  to  the liabilities  specified  by the document.   Mr.  Pathak  also relies on the fact that there are certain items of  property which are excluded from the operation of the deed, and  they are  specified  in  paragraph  2 of  the  document;  and  he contends that the buildings in question are not amongst  the excepted  properties.   That is why the  buildings  must  be deemed  to  have been incorporated by Chitti Babu  with  the impartible  estate.  We are not impressed by this  argument. In  considering  the effect of this argument,  it  would  be relevant to recall that about this time, Chitti Babu had  to fight for his title which was challenged by four persons  in suit No. 18 of 1903, and in that litigation Chitti Babu  was asserting his title more as an adopted son than as a devisee under  the will of Ananada Gajapathi If that be  so,  Chitti Babu  was claiming the properties as an adopted son  and  as such,  properties  which came into his  hands  as  ancestral properties  could  not  be  incorporated  by  him  with  the impartible  Zamindari estate.  Besides, the very  clause  on which  Mr.  Pathak  relies clearly shows  what  Chitti  Babu intended  to be the effect of this document.   The  document says  that the properties have been settled on  the  trustee for  the benefit of his minor eldest son in the same way  as his  son  would  have got the said properties  if  they  had devolved upon him by survivorship and that means that Chitti Babu  did not intend to confer on the SOD any larger  estate than  he would have got by survivorship if Chitti  Babu  had died  at the relevant time and the estate had devolved  upon his son by survivorship.  There is no doubt that if the  son had obtained the estate by 445 survivorship, he would have got impartible Zamindari  estate as  such and the other properties which had, till then,  not been  incorporated  with  the Zamindari  estate  would  have retained  their character as partible properties.  The  same result  is  intended to be achieved by the  deed  of  trust. Therefore,  we do not think that the argument based  on  the trust  deed  executed  by Chitti Babu  really  supports  the plaintiff’s  case  that the buildings in question  had  been incorporated  by Chitti Babu with the  impartible  Zamindari estate, In  the  result, the plaintiff’s appeals also fail  and  are dismissed. Three  petitions  were  filed in this  Court,  C.M.Ps.  Nos. 740/1962,  741/1962  and 1821/1962 for  adducing  additional evidence.   These  applications are dismissed.  We  make  no order on the C.M.P. No. 1822/1962 and we have partly allowed C.M.P.  No.  2631/1962.  By this petition, defendant  No.  1 seeks to raise additional grounds to which reference must be

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made before we part with these appeals.  Mr.  Kumaramangalam has invited our attention to the fact that there are certain properties which still remain to be dealt with and there are certain  inaccurate statements in the judgment under  appeal which  need  to be corrected.  In its judgment,  the  Appeal Court  has  observed that it is contended for  the  Rajkumar that  Ex.   P-132 cannot be deemed as containing a  list  of buildings  owned  by the Samsthanam, for it is  pointed  out that  even the Vizianagram Fort and the connected  buildings which  admittedly belonged to the estate were  not  included therein.   Mr. Kumaramangalam points out that the  reference to the Vizianagram Fort as admittedly constituting a part of the  estate  is  wrong.  In fact,  the  question  about  the character  of  the Vizianagram Fort is  pending  before  the learned Subordinate judge, Vishakhapatnam in O.S. No. 120 of 1948.  In that suit defendant No. 1 has specifically claimed that the Fort is not an impartible property but 446 belongs  to the joint family and, therefore, he has a  1/3rd share  in  it.   It  is conceded  by  Mr.  Pathak  that  the reference  to the Vizianagram Fort in the statement  of  the Appeal Court judgment is erroneous and should be treated  as such,  and  the matter should be tried between  the  parties according to law in O.S. No. 120 of 1948. The  other  point  on  which  Mr.  Kumaramangalam  wants   a clarification is in regard to the home farm lands.  Both the courts  below  have left this matter to be  decided  by  the appropriate  Tribunal under sections 12 and 47 of  the  Act. Mr. Kumaramangalam suggests and rightly that we should  make it  clear that in leaving this issue to be tried  under  the relevant  sections  of the Act, the courts  below  have  not decided  as  to which particular items of property  are,  or not, home farm lands.  That question is at large between the parties  and may have to be tried on the merits whenever  it arises. The  third  point  on which it is  necessary  to  make  some correction  is in respect of the statement contained in  the judgment  of the trial Court in regard to items under  issue No.  4. This statement is that items 33 (b) and 98 were  not identifiable at all.  Mr. Kumaramangalam points out that  it is  not correct to say that item 33 (b) is not  identifiable and in this connection, he has invited our attention to  the fact  that  his client has in fact made a claim  before  the Receiver  for this item which is Daba Gardens and  Bungalow. This   position  also  is  conceded  by  Mr.  Pathak.    Mr. Kumaramangalam also wants us to make it clear that in regard to  properties  in suit in respect of which no  finding  has been specifically recorded by the courts below, it would  be open  to the parties to ask the Court to deal with them  and consider the rival contentions of the parties in respect  of them.  This position is also not disputed. In  the  circumstances of the case, we direct  that  parties should bear their own costs in this Court.  447                  Narayana Gajapathi Raj (D.1845)              Sir Vijayarama  Gajapathi Raj I (D.1879)                    Alak Rajeswari(D.1901)          ------------------------------------------------      Sir Andra       Appala Kondayamba I   Chittibabu Vizi-    Gajapathi Raj       Maharani of Rewa   ram Raj (B.27-8-    (D.23-5-1897)        (D.14-12-1912)    1893,D11-9-1922)                                           Adopted by Alak                                             Rajeswari I                                          18-12-1897 Lalitha                                          Kumari Devi(Defen-

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                                        dant No.4)               ---------------------------------------------         Alak Narayana       Sir Vijayanada         Alak      Gajapathi Raj (B.1902, Gajapathi Raj (B.    Rajeswari          D.25-10-1937)        25-12-1905)           II         Vidyavathi Devi     (defendant No.3)           (deft N.2)       ---------------------------------------------------    Appalakonda yamba. Viziaram Gajapathi         II           Raj II (B.1.5.1924) Jaya Devi Visweswa-                         (plantiff)                 ra Gaja-                                                   pathi Raj                                                   (defenda-                                                    nt No.1) 448