http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 16  

PETITIONER: BHAIYA RAMANUJ PRATAP DEO

       Vs.

RESPONDENT: LALU MAHESHANUJ PRATAP DEO & ORS. AND VICE VERSA

DATE OF JUDGMENT26/08/1981

BENCH: MISRA, R.B. (J) BENCH: MISRA, R.B. (J) DESAI, D.A. KOSHAL, A.D.

CITATION:  1981 AIR 1937            1982 SCR  (1) 417  1981 SCALE  (3)1425  CITATOR INFO :  R          1982 SC 887  (20,22)  R          1988 SC 247  (20)

ACT:      Hindu Succession Act, 1956, sections 4 and 6, scope of- Whether the  provisions of section 6 overrides the customary Rule of  primogeniture Bihar  Land Reforms  Act, section  6, applicability of-Chota  Nagpur Encumbered Estates Act, 1876, section 12A,  conditions to be fulfilled-Indian Registration Act, sections  17 and 49, evidentially value of unregistered documents of.

HEADNOTE:      Bhaiya Rudra Pratap Deo was the holder of an impartible estate, known  as Nagaruntari  estate, in  the  district  of Palamau. The  succession to  the estate  was governed by the rule of lineal primogeniture. Under the said rule the eldest male member  of the eldest line was to succeed to the estate while the  junior members  were entitled only to maintenance grants subject  to resumption on extinction of the male line of the  eldest branch.  Rudra Pratap Deo Singh had a younger brother Harihar  Pratap Deo who died in a state of jointness with his brother Rudra Pratap Deo in 1934 leaving behind his son Lalu  Maheshanuj Pratap  Deo alias  Nila Bacha,  and one other step son who also died in 1937 unmarried. Bhaiya Rudra Pratap Deo executed a deed of maintenance (Khorposh) on 14th April, 1952  in respect  of eight  villages. A dispute arose between the  parties in respect of the agricultural plots of village Sigsigi. The proceedings under section 145 Crl. P.C. ended in  favour of  Nila Bacha.  Bhaiya Rudra  Pratap  Deo, therefore, filed a civil suit No. 16 of 1955, on the grounds that (a)  a fraud  was committed  by including two villages, namely, Sigsigi  and Patihari in the formal deed of khorposh dated 14th  April, 1952  and (b)  that F the khorposh grants are void  under section  12A of  the Chota Nagpur Encumbered Estates Act  and the  provisions of  the Bihar  Land Reforms Act, 1950  and therefore,  no title accrued to the defendant on that  basis. The  suit was  contested by the defendant on the grounds amongst others: The Nagaruntari estate was never an impartible  estate governed by the rule of primogeniture, but in  its origin it was a non-heritable Ghatwala Jagir and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 16  

it was  subsequently made heritable and raised to the status of a  revenue paying  estate and  thus it became an ordinary joint family  property partible  amongst the  members; there was no  fraud committed by any one; and with the enforcement of the  Hindu Succession  Act, 1956,  being a co-sharer with the plaintiff,  he was  entitled to  remain in possession of all the  eight villages  covered by  the khorposh  deed till partition was made.      The learned Subordinate Judge held that by the khorposh deed the  defendant was given all the eight villages, but he did not acquire any interest in the 418 said land  as the deed was against the provisions of section 12A of the Chota Nagpur Encumbered Estates Act and the Chota Nagpur Tenancy  Act; that  the  Nagaruntari  Estate  was  an impartible estate  governed by the rule of primogeniture but it ceased  to be  so after  the  enforcement  of  the  Hinda Succession Act, 1956 and since Bhaiya Rudra Pratap Deo died, during the  pendency of the suit and after this Act had come into force,  the succession  would be  governed by  survivor ship and  as such the legal representatives of the plaintiff as well  as the defendant would succeed. The first appellate court held  that: (a)  in as  much as the khorposh grant was not made  with the  sanction of  the Commissioner, the grant was void  under section  12A of  the Chota Nagpur Encumbered Estates Act;  and (b)  because the  possession  of  the  ex- proprietor with  respect to  the Bakasht land became that of raiyat under  the State  of Bihar  and raiyati right was not transferable without  a registered  document, the possession of the  defendant was  on the basis of a void agreement; and (c) that  after the  death of  Bhaiya Rudra  ’  Pratap  Deo, section 6  of the Hindu Succession Act became applicable and both appellants  and the defendants were entitled to succeed as co-sharers.      The second  appeal by the plaintiffs was partly allowed inasmuch as  the High  Court found  that the  heirs of Rudra Pratap Deo  were entitled  to get a decree for possession of the suit  land jointly  with the  sole defendant as also for mense profits  for their share, i.e. One half in addition to the entire  mense profits  to which  Rudra  Pratap  Deo  was entitled in  his life time. Both the parties have come up in appeal to  this Court against the judgment and decree of the High Court to the extent it went against them.      Dismissing the  plaintiff’s appeal and allowing that of the defendant, the Court ^      HELD: 1.  A bare  perusal of  Section 4  of  the  Hindu Succession Act,  1956 indicates  That any custom or usage as part of  Hindu law  in force will cease to have effect after the enforcement  of Hindu Succession Act with respect to any matter for  which provision  is made  in the Act. If rule of lineal primogeniture  in Nagaruntari  estate is  a customary one it  will certainly  cease to have effect, even though it was part of Hindu law. [426 D.E]      2. Section  S(ii) of  the Hindu  Succession  Act,  1956 protects an  estate which  descends to  a single heir by the terms of  any covenant  or agreement  entered into or by the terms of  any enactment  inasmuch as Hindu Succession Act is not applicable to such an estate. Section 5(ii) stands as an exception to section 4 of the Act. [426 G-H]      The rule  of lineal  primogeniture in the instant case, is not  a statutory rule but a customary rule and therefore, it is  not saved  by section  5(ii) of  the Hindu Succession Act. [426 H,427 A]      3. Section  6  of  the  Bihar  Land  Reforms  Act  only

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 16  

contemplates that  the land  will be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession  thereof and hold it as a raiyat under the state having  occupancy  rights  in  respect  of  such  land subject to  payment of  fair and  equitable rent. But if the intermediary was  in possession in a representative capacity on behalf of the other coparceners as a necessary corollary 419 the land will be deemed to be settled with all those persons on whose  behalf A  one particular  intermediary was in khas possession. Consequently  if the  possession of Bhaiya Rudra Pratap Deo  was on behalf of other coparceners the land will be deemed  to be settled with all those coparceners and they shall all  become raiyats.  Here, the  joint status  of  the family continued  and therefore,  after the  death of Bhaiya Rudra  Pratap   Deo,  his   interest  developed   on   other coparceners as well. [429 C-F]      4: 1.  Admittedly the defendant was a member of a joint Hindu family.  Even in  an impartible estate he was entitled to maintenance  and the  land in dispute had admittedly been given to  the defendants  by the  impartible estate holders. This possession therefore, cannot be taken the possession of a tresspasser. [431 A]      4: 2.  Section  12A  of  the  Chota  Nagpur  Encumbered Estates Act,  1876 would  be attracted  only when possession and  enjoyment   of  the  property  is  restored  under  the circumstances mentioned  in the first or the third clause of section  12.   The  onus   to  prove   that  the  conditions contemplated  by  section  12  were  satisfied  lay  on  the plaintiff, which he failed to do. [430 D-E]      4: 3.  The maintenance  deed can  be  looked  into  for collateral purpose of ascertaining the nature of possession. Khorposh (maintenance)  deed is  a document  which  requires registration within  the meaning of section 17 of the Indian Registration Act  and as  the document was not registered it cannot be  received as evidence of any transaction affecting such property.  Proviso to  section 49, however, permits the use of  the document,  even though unregistered, as evidence of any  collateral transaction not registered to be effected by registered instrument. [430F-H]      5 (a) A holder of an impartible estate can alienate the estate by gift intervivos or even by will, though the family is undivided,  the only  limitation on this power would flow from a  family custom  to the contrary or from the condition of the  tenure which  has the  same effect. Therefore, it is not correct  to say  that the  impartible estate would go to holder s  successors alone  and not  to the other members or the family by survivorship. [431 B-C, 435 C-D]      (b) It must be taken to be well settled that the 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 by primogeniture, it will be a part of the joint estate of the undivided family. [433 D-E]      In the  case of  an ordinary  joint family property the members of  the family  can claim four rights: (1) the right to partition,  (2) the  right to  restrain alienation by the head of  the family  except for  necessity, (3) the right to maintenance, and  (4)  the  right  of  survivorship.  It  is obvious that  from the  very nature of the property which is impartible the  first three  rights cannot exist. The fourth 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 16  

which can be claim 420 ed by  the members  of the  undivided family  which owns the impartible estate  should not  be confused  with  mere  spec successionis.  Unlike   spec  successionis   the  right   of survivorship can  be renounced or surrendered. [433 G-H, 434 A-B]      Rajah Velugoti  Kumara Krishna  Yachendra Varu and Ors. v. Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors [1970]  3 SCR  88: Raja  Rama Rao  v. Raja  of Pittapur, [1918] L.R.  45 I  A. 148;  Hargovind Singh  v. Collector of Etah, A  I R.  1937 All  377  and  Raja  Rao  Venkata  Surya Mahipati Rama  Krishna Rao Bahadur v. Court of Wards, [1899] L.R. 26 I.A. 83, discussed and distinguished.      Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan  Bahadur   and  ors.  v.  Shri  Pushavathi  Visweswar Gajapathi Raj and ors. [1964] 2 SCR 403, applied.      Chinnathayal alias  Veeralakshmi v.  Kulasekara Pandiya Naicker and Anr. [1952] SCR 241, referred to.      6. The  overwhelming evidence  on the  record,  in  the instant case,  categorically proves:  (a) that  the disputed estate was  an impartible  estate  till  the  death  of  the original plaintiff  in 1957;  and (b)  it is  open to  a co- sharer to remain in possession of the joint property and the proper remedy  for the  plaintiff in  such case is to file a suit for  partition where  the equities of the parties would be adjusted  and not  a suit  for possession of plots of one village and for mesne profits. [436 B, 437 B-D]      Collector of  Bombay v.  Municipal Corporation  of  the City  of   Bombay  and  Ors.    A.I.R.  1951  SC  469,  held inapplicable.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeals Nos. 209 & 2280 of 1970.      CA. No.  209/70 arising  out of  certificate &  CA. No. 2280/70  arising  out  of  special  leave  from  the  common judgment and  decree dated  the 28th  February, 1968  of the Patna High Court in Appeal from Appellate Decree No. 1055 of 1962,      S.C. Misra  and U.P.  Singh, for  the Appellant in C.A. No. 209/70 and for the Respondent in CA. No. 2280/70.      KK. Sinha, S.K Sinha and M.L. Chibber for the Appellant in CA. 2280/70 and for the Respondent in C.A. 209 of 1970.      The Judgment of the Court was delivered by      MISRA J.  These  two  connected  appeals  are  directed against a t common judgment dated 28th February, 1968 of the Patna High  Court, the  first one  by  certificate  and  the second by special leave. 421      Bhaiya Rudra Pratap Deo was the holder of an impartible A estate,  known as  Nagaruntari estate,  in the district of Palamau. The  succession to  the estate  was governed by the rule of lineal primogeniture. Under the said rule the eldest male member  of the eldest line was to succeed to the estate while the junior members of the family were entitled only to maintenance grants subject to resumption on extinction of an heir in the male line of the eldest branch.      It appears  that the  estate  was  accorded  protection under the  Chota Nagpur Encumbered Estates Act, 1876, on the application of  Bhaiya Rudra  Pratap Deo as per notification dated 17th  March 1932  published in the Bihar Gazette dated 23rd March,  1932 and  after  liquidation  of  debt  it  was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 16  

released  from  the  operation  of  Chota  Nagar  Encumbered Estates Act in October 1945. Eventually the estate vested in the State of Bihar under the Bihar Land Reforms Act, 1950 in pursuance of  a notification  dated 5th  of November,  1951. Harihar Pratap  Deo, who  was the  younger brother of Bhaiya Rudra Pratap  Deo, had died in a state of jointness with his brother Bhaiya  Rudra Pratap  Deo in 1934 leaving behind his son Lalu  Maheshanuj Pratap  Deo alias  Nila Bacha,  and one other step  son  who  also  died  in  1937  unmarried.  Lalu Maheshanuj   Pratap   Deo   demanded   land   for   khorposh (maintenance) from  Bhaiya Rudra  Pratap Deo in 1950. Bhaiya Rudra Pratap  Deo executed  a deed of maintenance on 14th of April, 1952 in respect of eight h villages in favour of Lalu Maheshanuj Pratap Deo. A dispute, however, arose between the parties in  respect of  the plots  of village  Sigsigi which culminated in  a proceeding  under section  144 Cr. P.C. The proceedings were,  however, later converted into proceedings under section  145 Cr.  P.C. which  ended in  favour of Lalu Maheshanuj Pratap  Deo on  4th of  July, 1955.  Bhaiya Rudra Pratap Deo feeling aggrieved by the order filed a suit which has given rise to the present appeals and which was later on numbered as  suit No.  16 of  1955, against  Lalu Maheshanuj Pratap Deo alias ’Nila Bacha’ in respect of the agricultural plots of  village Sigsigi  and the grains in the custody and control of the police, Bisrampur, district Palamau.      The case  of  the  plaintiffs  as  follows:  After  the vesting of  the estate  in the  State of Bihar the defendant approached him with a request that the plaintiff should give him the villages Bhojpur, Jaungipur, Chitri, Rohila, Bhandar and Khundra  but the  plaintiff declined to do so as section 12A of  the Chota  Nagpur  Encumbered  Estate  Act  and  the provisions of the Bihar Land Reforms Act stood as a bar. 422 The defendant, however, implored and wanted to take a chance and try  his luck.  On the  beseechment of the defendant the plaintiff allowed  him six  villages only,  namely  Bhojpur, Jaungipur Chitri,  Rohila, Bhandar  and Khundra  subject  to acceptance of  the State  of Bihar.  There was  neither  any proposal for  villages Sigsigi  and  Patihari  nor  had  the plaintiff ever  agreed to  give these  two villages  to  the defendant. A  formal  unstamped  and  unregistered  deed  of Khorposh(maintenance) was  no doubt  created in  respect  of only six  villages on  14th of  April, 1952  subject to  the approval of  the authorities.  The  defendant,  however,  in collusion with  the plaintiff’s  employees and  ex-employees and without  the knowledge  and information of the plaintiff managed to  use the  plaintiff’s signature  and manufactured evidence to  show that the two villages Sigsigi and Patihari had also  been included in Khorposh grant and included these two villages in the formal deed dated 14th of April, 1952 in collusion  with   the  typist   and  designing   persons  by perpetrating fraud on the plaintiff.      When the  plaintiff came  to  know  of  the  fraud  and fabrication of  the defendant  he lodged  protest before the authorities and  the authorities  refused to accept the plea of khorposh  and they ordered the villages to be included in the compensation  list of  the plaintiff and the rent of all the sirjot lands was fixed in favour of the plaintiff. Thus, no khorposh  grant  remains  even  in  respect  of  the  six villages and such grants, if any, are void under section 12A of  the   Chota  Nagpur   Encumbered  Estates  Act  and  the provisions of  the Bihar Land Reforms Act. Even assuming for the sake  of argument  that the  two  villages  Sigsigi  and Patihari were  included in  the deed  dated 14th  of  April, 1952, the transfer is void ab initio and no title accrued to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 16  

the defendant on that basis.      At the  time of  proceedings under section 145 Cr. P.C. paddy crops  grown by the plaintiff were standing and on the petition of  the plaintiff  the same  were harvested  by the police. Subsequent  cultivation was  also done  through  the police, Bisarampur  and the plaintiff is entitled to all the grains in the custody of the police.      On these allegations the plaintiff sought a declaration that the  land in  dispute, detailed in Schedule A, situated in village  Sigsigi was  the khasjot  land of the plaintiff, that the defendant had no concern therewith and that he (the plaintiff )  was entitled  to the grain or the value thereof as detailed  in Schedule  B. The  plaintiff also  claimed  a relief for possession over the disputed plots 423 and the  grain or  the value  thereof. A  relief  for  mesne profits to  be A  ascertained in  subsequent proceedings was also claimed.      Bhaiya Rudra Pratap Deo, the plaintiff, died during the pendency of  the suit  and his  two sons and four widows got themselves substituted  in his place. His eldest son, Bhaiya Ramanuj Pratap  Deo filed  a petition before the Trial Court for substitution  in place  of his  deceased father alleging that  the   Nagaruntari  Estate  was  an  impartible  estate governed by the rule of lineal primogeniture under which the eldest son  alone is  entitled to  succeed his  father.  His prayer was  allowed. Subsequently  the second  son of Bhaiya Rudra Pratap  Deo and  his widows filed a petition for being substituted.  The  Sub-Judge  impleaded  all  these  persons provisionally as  plaintiffs ordering to strike out an issue as to  which of  them was  or were entitled to the fruits of the litigation,  if eventually the court decided the suit as against the  defendant. The conduct of the suit was given to plaintiff No.  I under  the provisions  of rule  11, order 1 C.P.C.      The  suit   was  contested  by  the  defendant  on  the following grounds amongst others: The Nagaruntari estate was never an  impartible estate  governed by  the rule of lineal primogeniture but  in its  origin  it  was  a  non-heritable Ghatwala Jagir  and it  was subsequently  made heritable and raised to  the status of a revenue paying estate and thus it became an  ordinary joint  family property  partible amongst the members.  His father  died in  a state of jointness with Bhaiya Rudra  Pratap Deo  sometime in  1934 when he was only four years  old and  he was living under the guardianship of his uncle.  He was  made to  carry  an  impression,  due  to propaganda made  by his  uncle Bhaiya  Rudra Pratap Deo that Nagaruntari estate  was an impartible estate and being under this wrong  impression he  subsequently filed an application against his  uncle in  1950 claiming  khorposh grant  of  22 villages including  village Sigsigi  from out of Nagaruntria estate and  also partition  of the self-acquired property of his grand-father.  That application  was, however, rejected. The Nagaruntari estate later on vested in the State of Bihar under the  Bihar Land  Reforms Act.  Thereafter Bhaiya Rudra Pratap Deo of his own accord executed a khorposh deed in his favour in  respect of  eight villages  including Sigsigi and got it  typed in  his house  and  sent  it  to  him  with  a direction to  take possession  of  the  eight  villages  and accordingly he  took possession  of the  same. The defendant denied that  he had  fraudulently got  Sigsigi and  Patihari villages inserted in the Khorposh deed or that this deed was illegal. The defendant 424 claimed that  he was  a co-sharer with the plaintiff and was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 16  

entitled to  remain in  possession of all the eight villages covered by the Khorposh deed till partition was made,      The Subordinate  Judge held  that by  the khorposh deed Bhaiya Rudra  Pratap Deo  had in fact given to the defendant in khorposh eight villages including village Sigsigi but the defendant did  not acquire  any interest in the said land on the basis  of the  khorposh deed as the same was against the provisions of  section 12A  of the  Chota Nagpur  Encumbered Estates  Act   and  the   Chota  Nagpur  Tenancy  Act;  that Nagaruntari estate  was an impartible estate governed by the rule of  lineal primogeniture  but it  ceased to be so after the enforcement  of the  Hindu Succession  Act, 1956 in June 1956 and  since Bhaiya  Rudra Pratap Deo died after this Act came into  force the  succession  to  the  estate  would  be governed by survivorship as contemplated by section 6 of the Hindu Succession Act. As such the plaintiffs, as well as the defendant would  succeed. The  defendant is thus entitled to remain in  possession of the said property as one of the co- owners and  the plaintiffs could not claim an exclusive khas possession till  the matter  is decided in a partition suit. On these findings he dismissed the suit      Feeling aggrieved  by  the  decision  heirs  and  legal representatives of  Bhaiya Rudra  Pratap Deo,  the  deceased plaintiff, preferred an appeal. On appeal the District Judge confirmed the findings of the Trial Court. He, however, held that the  grant of  khorposh by  Rudra Pratap  Deo after the release of  the estate  from the  management  of  the  Chota Nagpur Encumbered  Estates Act was void under section 12A of the Act as the khorposh grant was not made with the sanction of the  Commissioner and  also because the possession of the ex-proprietor with  respect to  the Bakasht land became that of a  raiyat under  the State of Bihar and the raiyati right was not  transferable without  a registered  document. Thus. the possession  of the  defendant was on the basis of a void document. The  learned Judge  further held that the document of  khorposh   being  unregistered  was  not  admissible  in evidence but  it could  be used  for a collateral purpose of explaining the  nature of  possession;  that  the  defendant being a  minor member of the family was put in possession of the property  covered by  it by the holder of the estate and his possession  was as  khorposh-holder (maintenance holder) and not as a trespasser and he was not liable to be evicted. The Nagaruntari  estate was found to be an impartible estate where succession was governed by 425 the rule  of lineal  primogeniture. But  after the  death of Bhaiya A Rudra Pratap Deo section 6 of the. Hindu Succession Act became  applicable and  the devolution  of the  property would not  be governed  by the  rule of lineal primogeniture but by  the ordinary rule of succession as is provided under the Hindu Succession Act. It was also held that Rudra Pratap had died  in a  state of  jointness with  the defendant  and after Hindu  Succession Act  came into force the Nagaruntari estate became  an ordinary  joint  family  property  of  the parties and  that the  possession of  the defendant was as a co-sharer.  On  these  findings  the  appeal  filed  by  the plaintiffs was dismissed by the District Judge.      Undaunted, the  plaintiffs preferred a Second Appeal in the High Court which was partly allowed inasmuch as the High Court found  that the heirs of Rudra Pratap were entitled to get a  decree for  possession of  the suit land jointly with the sole  defendant as  also for  mesne  profits  for  their share, that  is, one-half  in addition  to the  entire mesne profits to  which Rudra Pratap was entitled in his lifetime. Both the  parties have  come up  in  appeal  to  this  Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 16  

against the  judgment and  decree of  the High  Court to the extent it went against them.      First we take up appeal No. 209 of 1970 filed by Bhaiya Ramanuj  Pratap   Deo,  heir  and  legal  representative  of deceased plaintiff.      Mr. S  C. Misra  assisted by  Mr. U.P.  Singh raised  a number of contentions. His first contention is that the rule of lineal  primogeniture survived even after the enforcement of the Hindu Succession Act. To appreciate the contention it will be  necessary to examine the relevant provisions of the Act. Section 4(1) (a) of the Act lays down:           "4. (1)  Save as  otherwise expressly  provided in      this Act- G           (a)  any text, rule or interpretation of Hindu Law                or any custom or usage as part of that law in                force immediately  before the commencement of                this Act  shall cease  to  have  effect  with                respect to  any matter for which provision is                made in this Act." 426      Section 6 of the Act provides:           "6. When  a male Hindu dies after the commencement      of this  Act, having  at  the  time  of  his  death  in      interest in  a  Mitakshara  coparcenary  property,  his      interest in  the property shall devolve by survivorship      upon the  surviving members  of the coparcenary and not      in accordance with this Act:           Provided  that,  if  the  deceased  had  left  him      surviving a female relative specified in class I of the      Schedule or  a male  relative, specified  in that class      who claims,  through such female relative, the interest      of the  deceased in the Mitakshara coparcenary property      shall devolve  by testamentary or intestate succession,      as  the  case  may  be,  under  this  Act  and  not  by      survivorship."      A bare  perusal of  section 4  would indicate  that any custom or  usage as part of Hindu law in force will cease to have effect  after the  enforcement of  Hindu Succession Act with respect  to any  matter for  which provision is made in the Act.  If rule  of lineal  primogeniture  in  Nagaruntari estate is  a customary  one it  will certainly cease to have effect, even though it was part of Hindu law.      Faced with  this situation  the learned counsel for the appellant invokes  section 5  (ii) of  the Hindu  Succession Act. In  so far as it is material for the present discussion it reads:      "5. This Act shall not apply to:-      (i) ...      ...         ...        ...         ...      (ii) any  estate which descends to a single heir by the           terms of  any covenant or agreement entered into..           or by the commencement of this Act."      This section  protects an  estate which  descends to  a single heir  by the  terms  of  any  covenant  or  agreement entered into  or by the terms of any enactment in as much as Hindu Succession  Act is  not applicable  to such an estate. This section  stands as an exception to section 4 of the Act referred to above.      It is  urged by  Shri Misra  that the  rule  of  lineal primogeniture in  the instant  case is  a statutory rule and not a customary rule and 427 therefore it  is saved  by  section  5  (ii)  of  the  Hindu Succession Act.  A In  support of  his contention  he placed reliance  upon   Bengal  Regulation   10  of   1800.  Bengal Regulation 10 of 1800 reads as under:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 16  

    (i)   By Regulation 11, 1798 the estates of proprietors           of land  dying intestate are declared liable to be           divided among  the heirs of the deceased agreeably           to the Hindu or Muhamdan laws.           A custom, however, having been found to prevail in      the jungle  Mahals of  Midnapore and other districts by      which the  succession to  the landed estates invariably      devolves to  a single  heir without the division of the      property.. the  Governor General-in-Council has enacted      the following  rule to  be in force in the Provinces of      Bengal,  Bihar   and  Orissa   from  the  date  of  its      promulgation.           Regulation 11, 1798 (2) shall not be considered to      supersede or  affect any  established usage  which  may      have obtained  in the  jungle Mahals  of Midnapore  and      other districts,  by which  the  succession  to  landed      estates, the proprietor of which may die intestate, has      hitherto been  considered to  devolve to a single heir,      to the exclusion of the other heirs of the deceased.           In the  Mahals in question the local custom of the      country shall be continued in full force as heretofore,      and the  Courts of  Justice be  guided  by  it  in  the      decision of  all claims  which may  come before them to      the inheritance  of landed  property situated  in those      Mahals."      The following  propositions are  clearly deducible from this Regulation: F      (a)  The Regulation takes note of an earlier Regulation           (Regulation No. 11 of 1798) according to which the           estate of a proprietor of land dying intestate was           to be  divided amongst  his heirs according to his           personal law.      (b)   It further  notes that a custom had been found to           pre vail  in certain  areas by which land devolved           on a single heir.      (c)   It then lays down that such a custom would not be           deemed to  have been  superseded by Regulation No.           11 428           of 1798  and that  in the  said areas  such custom           shall be rule of decision.      This analysis  of the  Regulation leads  to the further preposition that  it did  not by  its own force declare that any estate  would descend  to a single heir. All that it did was to  keep  alive  the  custom  sanctioning  the  rule  of primogeniture entailing  impartibility of  the  estate.  The rule of  custom was thus recognised as such and no estate by the terms  of the Regulation itself was made to descend to a single heir.  In this  view of  the matter  clause  (ii)  of section 5  of the Hindu Succession Act does not cover such a custom.      Alternatively it  was argued  that even  if the rule of lineal primogeniture  did not  survive after the enforcement of the  Hindu Succession Act the suit land will be deemed to be settled  with the  plaintiff under section 6 of the Bihar Land Reforms  Act and  the plaintiff  became  the  exclusive owner of  the suit land. Section 6 of the Bihar Land Reforms Act, 1950, insofar as it is material for this case reads: 6. (1)    On and from the date of vesting all lands used for           agricultural or horticultural purposes, which were           in ’khas’  possession of  an intermediary  on  the           date of , such vesting, including:-           (a)  (i)  proprietor’s private lands let out under                     a lease  for a  term of years or under a                     lease from  year to year, referred to in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 16  

                   Sec. 116  of the Bihar Tenancy Act, 1885                     (8 of 1885),                (ii)  landlord’s  privileged  lands  let  out                     under a  registered  lease  for  a  term                     exceeding one  year or  under  a  lease,                     written or  oral, for  a period  of  one                     year or  less, referred to in Sec. 43 of                     the Chota Nagpur Tenancy Act, 1908 (Ben.                     Act 6 of 1908),           (b)   lands used for agricultural or horticultural                purposes and held in the direct possession of                a temporary  lease of an estate or tenure and                cultivated by  himself with  his own stock or                by his  own servants  or by  hired labour  or                with hired stock, and 429           (c)   lands used for agricultural or horticultural                purposes forming  the  subject  matter  of  a                subsisting  mortgage  on  the  redemption  of                which the intermediary is entitled to recover                ’khas’ possession  thereof; shall  subject to                the provisions of Sec. 7 A and 7 be deemed to                be   settled   by   the   State   with   such                intermediary and  he  shall  be  entitled  to                retain possession  thereof and hold them as a                ’raiyat’ under  the  State  having  occupancy                rights in  respect of  such lands  subject to                the payment  of such  fair and equitable rent                as may  be determined by the Collector in the                prescribed manner."      This section  only contemplates  that the  land will be deemed to be settled by the State with such intermediary and he shall  be entitled  to retain possession thereof and hold it as  a raiyat  under the  State having occupancy rights in respect  of  such  land  subject  to  payment  of  fair  and equitable rent. But if the intermediary was in possession in a  representative   capacity  on   behalf   of   the   other coparceners, as  a necessary  corollary  the  land  will  be deemed to  be settled with all those persons on whose behalf one  particular   intermediary  was   in  khas   possession. Consequently if  the possession  of Bhaiya  Rudra Pratap Deo was on  behalf of  other coparceners the land will be deemed to be  settled with all those coparceners and they shall all become raiyats.      It is  nobody’s case  that there has been any partition between the plaintiff and the defendant. The joint status of the family  continued and,  therefore, after  the  death  of Bhaiya Rudra  Pratap Deo  his  interest  devolved  on  other coparceners as well. F       It  was next  contended for  the  appellant  that  the defendant got  the land under a khorposh deed which was void ab initio  and, therefore,  the status  of the defendant was that of  a trespasser  and he was liable to ejectment on the suit of  the  plaintiff.  According  to  the  appellant  the khorposh deed  was void  for two  reasons:  firstly  because there was  no sanction  of the  Commissioner for the deed as contemplated by  section 12 A of the Chota Nagpur Encumbered Estates Act,  1876; secondly  because the  deed was  neither stamped nor  registered, In  order to  appreciate the  first reason it is pertinent to read section 12 A insofar as it is material for the purpose of the case:           "12 A (1) When the possession and enjoyment of 430           property  is  restored,  under  the  circumstances           mentioned in  the first  or the  third  clause  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 16  

         section 12,  to the  person who  was the holder of           such property when the application under section 2           was made,  such person  shall  not  be  competent,           without   the    previous    sanction    of    the           Commissioner,-           (a)   to  alienate  such  property,  or  any  part                thereof, in any way, or           (b)  to create any charge thereon extending beyond                his lifetime.      (2) ...         ...            ...               ...      (3)   Every alienation  and charge made or attempted in           contravention of sub-section (I) shall be void."      Section 12  A would  be attracted  only when possession and  enjoyment   of  the  property  is  restored  under  the circumstances mentioned  in the first or the third clause of section 12.  It was  for the  plaintiff  to  show  that  the conditions contemplated  by section 12 were satisfied, which he has failed to do      As regards  the second reason, the argument is based on section 17  read with  section 49 of the Indian Registration Act. Section  17 of  the  Registration  Act  enumerates  the documents  requiring   registration.  Section   49  of   the Registration Act  provides  that  no  document  required  by section 17  or by  any provision of the Transfer of Property Act, 1882 to be registered shall be (a) affect any immovable property comprised  therein,  (b)  ..  (c)  be  received  as evidence of  any  transaction  affecting  such  property  or conferring  such  power,  unless  it  has  been  registered. Khorposh (maintenance)  deed is  a document  which  requires registration within  the meaning of section 17 of the Indian Registration Act  and as  the document was not registered it cannot be  received as evidence of any transaction affecting such property.  Proviso to  section 49, however, permits the use of  the document,  even though unregistered, as evidence of any collateral transaction not required to be effected by registered instrument.  In this  view of  the legal position the maintenance  deed can  be  looked  into  for  collateral purpose of ascertaining the nature of possession. 431      Admittedly the  defendant was a member of a joint Hindu family. Even  in an  impartible estate  he was  entitled  to maintenance and  the land  in dispute  had  admittedly  been given to  the defendant by the impartible estate holder. His possession, therefore,  cannot be taken to be the possession of a  trespasser and the High Court in our opinion has erred in branding the defendant as a trespasser.      This leads  us to  the  last,  but  not  the  least  in importance, contention  raised on  behalf of the appellants. According to  Shri S.C.Misra  the original  plaintiff  being holder of  an impartible  estate, his estate would go to his successors alone  and not to the other members of the family by  survivorship.   The  learned  counsel  relied  upon  the following cases in support of his contention: Rajah Velugoti Kumara Krishna  Yachendra Varu  &  Ors.  v.  Rajah  Velugoti Sarvagna Kumara  Krishna Yachendra  Varu and Ors., Raja Rama Rao v.  Raja of  Pittapur, Hargovind  Singh v.  Collector of Etah, Raja  Rao Venkata  Surya  Mahipati  Rama  Krishna  Rao Bahadur v. Court of Wards.      In Rajah  Velugoti Kumara  Krishna Yachendra  Varu  and Ors. v.  Rajah Velugoti  Sarvagna Kumara  Krishna  Yachendra Varu and  Ors., (supra)  the first  and  the  foremost  case relied upon,  a contention  was  raised  on  behalf  of  the plaintiff that  the property  of the  impartible estate  was held in  coparcenary as  joint family  property  and  became partible amongst  the members  once it lost its character of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 16  

impartibility. In  other words  the contention  was that the junior members  had a  present interest  in  the  impartible estate and  were entitled  to a  share in  the  estate  once impartibility was  removed. This  argument was  repelled and this Court observed:           "In our opinion there is no justification for this      argument. The law regarding the nature and incidents of      impartible estate  is now  well settled. Impartility is      essentially the  creature of custom. The junior members      of a  joint family  in the  case of  ancient impartible      joint family  estate take  no right  in the property by      birth, and therefore, have no right of partition having      regard to  the  very  nature  of  the  estate  that  is      impartible. Secondly, they have 432      no right  to inerdict  alienation by  the head  of  the      family either for necessity or otherwise."      This Court, however, further exposed the legal position in these words:           "To this  extent the  general  law  of  Mitakshara      applicable to  joint family  property has been modified      by custom  and an  impartible estate,  though it may be      ancestral joint  family estate,  is  clothed  with  the      incidents of  self-acquired and  separate  property  to      that extent.  The only vesting of the incident of joint      family property,  which still  attaches  to  the  joint      family impartible  estate is  the right of survivorship      which, of  course, is  not inconsistent with the custom      of impartibility.  For the purpose of devolution of the      property, the  property is  assumed to  be joint family      property and the only right which a member of the joint      family acquires  by birth  is to  take the  property by      survivorship but  he does  not acquire  any interest in      the property  itself. The right to take by survivorship      continues only  so long  as the  joint family  does not      cease to  exist and the only manner by which this right      of  survivorship   could  be   put  an  end  to  is  by      establishing that  the estate ceased to be joint family      property for  the purpose  of succession  by proving an      intention, express  or implied, on behalf of the junior      members of  the family  to renounce  or  surrender  the      right to succeed to the estate."      The observations  extracted above  are self-explanatory and do  not support  the contention of the appellant, lather they support the defendant-respondent.      In Raja  Rama Rao  v. Raja  of Pittapur  (supra) it was held:           "An  impartible   Zamindari  is  the  creature  of      custom; it  is of its essence that no coparcenary in it      exists. Apart,  therefore, from custom and relationship      to the  holder the junior members of the family have no      right to maintenance out of it."      In Hargovind  Singh v.  Collector of  Etah (supra)  the Allahabad High  Court quoted  with  approval  the  following observations made  by the  Privy Council  in Baijnath Prasad Singh v. Tej Bali Singh : 433           ".. Zamindari  being the ancestral property of the      joint family, though impartible, the successor falls to      be designated  according to  the ordinary  rule of  the      Mitakshara law,  and  that  the  respondent  being  the      person who in a joint family would, being eldest of the      senior branch,  be the head of the family is the person      designated in this impartible raj to occupy the Gaddi."      In Raja  Rao Venkata  Surya Mahipati  Rama Krishna  Rao

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 16  

Bahadur v.  Court of  Wards (supra) it was laid down that an impartible  zamindari   was  not   inalienable  by  will  or otherwise by  virtue only  of its  impartibility, and in the absence of  proof of  some special  family custom  or tenure attaching to the zamindari and having that effect.      This question, however, need not detain us long as this Court had the occasion to consider the point at great length in Mirza  Raja Shri  Pushavathi Viziaram Gajapathi Raj Manne Sultan  Bahadur   and  Ors.  v.  Shri  Pushavathi  Visweswar Gajapathi Raj  and Ors.  Dealing with  the point in question this Court observed as follows:           "Since the  decision of the Privy Council in Shiba      Prasad Singh  v. Rani  Prayag Kumari  Debi it  must  be      taken to  be well  settled  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 the  Privy Council  in the  case of  Rani      Sartaj 434      Kuari v.  Deoraj Kuari  and the  First  Pittapur  case-      Venkata Surya  v. Court  of Wards.  Even the  right  of      maintenance as  a matter  of right is not applicable as      laid down  in the Second Pittapur case-Rama Rao v. Raja      of  Pittapur.   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   successionis.   Unlike   spes      successionis,  the   right  of   survivorship  can   be      renounced or surrendered.           It also  follows from the decision in Shiba Prasad      Singh’s case  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      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 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 16  

    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."      Prior to  the decision of the Privy Council in the case of Rani  Sartaj Kuari v. Deoraj Kuari (supra), it was always assumed that  a holder  of an  ancestral  impartible  estate cannot transfer or 435 mortgage the  said estate  beyond his own life-time so as to bind  the  coparceners,  except,  of  course,  for  purposes beneficial to  the family and not to himself alone. In 1888, however, this  view was  shaken by the decision of the Privy Council in  Rani Sartaj  Kuari’s case (supra). 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 are 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 (supra). 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  will,  though  the  family  is undivided; the only limitation on this power would flow from a family custom to the contrary or from the condition of the tenure which has the same effect.      Again in  Chinnnthayal alias Veeralakshmi v. Kulasekara Pandiya Naicker  & Anr.,  it was  held by this Court that to establish that  an impartible  estate has ceased to be joint family property  for purposes  of succession it is necessary to prove  an intention,  express or  implied, on the part of the junior  members of the family to give up their chance of succeeding to  the estate.  In each  case it is incumbent on the plaintiff  to adduce  satisfactory grounds  for  holding that the  joint ownership  of the  defendant’s branch in the estate  was  determined  so  that  it  became  the  separate property of the last holder’s branch. The test to be applied is whether  the facts  show a clear intention to renounce or surrender  any  interest  in  the  impartible  estate  or  a relinquishment of  the right  of succession and an intention to impress  upon the  zamindari the  character  of  separate property. In Pushavathi Viziaram Gajapathi Raj Manne’s cases (supra) this Court reiterated the same legal position.      For the foregoing discussion this appeal must fail.      This  leads  us  to  the  other  appeal  filed  by  the defendant. The  contention of  the learned  counsel for  the defendant appellant in 436 this case is that the possession of the appellant was not as a trespasser but he was a maintenance holder on the khorposh grant (maintenance)  given by  the impartible estate holder. The High  Court, therefore, erred in law in passing a decree for possession  and mesne  profits  against  the  defendant- appellant. It  was further  contended that  the  Nagaruntari estate was a partible estate.      As regards  the first  contention it  is open  to a co- sharer to remain in possession of the joint property and the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 16  

proper remedy  for the  plaintiff in  such case is to file a suit for  partition where  the equities of the parties would be  adjusted.   The  learned   counsel  for  the  plaintiff- respondent on  the other  hand urged  that  the  defendant’s possession was  only as  a trespasser.  In  support  of  his contention he  placed reliance  on Collector  of  Bombay  v. Municipal Corporation  of the  City of  Bombay  &  Ors.  The majority took the view that:           "The  position   of  the   Corporation   and   its      predecessor in  title was  that of  a person  having no      legal title  but nevertheless holding possession of the      land under  colour of  an invalid  grant of the land in      perpetuity and  free from  rent for  the purpose  of  a      market. Such  possession not  being  referable  to  any      legal title  it was  prima facie  adverse to  the legal      title of  the Government  as owner of the land from the      very moment the predecessor in title of the Corporation      took possession  of the  land under  the invalid grant.      This possession  had continued  openly, as of right and      uninterruptedly for  over 70  years and the Corporation      had  acquired   the  limited   title  to   it  and  its      predecessor in  title had  been prescribing  for during      all this  period, that is to say, the right to hold the      land in  perpetuity free  from rent  but only  for  the      purpose  of   a  market  in  terms  of  the  Government      Resolution of 1865".      In the  instant case  the defendant being a member of a joint Hindu  family was  entitled to  maintenance  from  the impartible  estate  holder.  The  impartible  estate  holder executed a  khorposh deed in favour of the defendant. If the document in question was invalid for want of registration or stamps the same can be looked into for collateral purpose to find  out   the  nature  of  possession  of  the  defendant- appellant. This  being the position in the instant case, the case cited  above is  not of  much help  to  the  plaintiff- respondent. In 437 that case  the sole  basis of  title itself  was invalid.  A perusal of  the plaint also indicates that the plaintiff had given some  grant to the defendant by way of maintenance and a formal  deed of maintenance was executed. The execution of the document  is not  denied by  the plaintiff.  All that he says is that village Sigsigi was not included in the deed.      We find  considerable force in the contention raised on behalf of  the defendant-appellant  that the  High Court has decree in  passing  the  decree  for  possession  and  mesne profits against  the defendant.  The proper  remedy for  the plaintiff in  this case  was to  file  a  regular  suit  for partition in  respect of  all the  properties and not a suit for possession of plots of one village and mesne profits.      The  second  contention  that  disputed  estate  was  a partible estate  has been  raised only  to be  repelled. The overwhelming evidence on the record leaves no room for doubt that the  disputed estate  was an impartible estate till the death of the original plaintiff in 1957      In the result the first appeal No. 209 of 1970 filed by the plaintiff  is dismissed  while the other appeal filed by the defendant,  No. 2280  of 1970, is allowed and the decree passed by  the High Court is set aside and the decree of the Trial Court  as affirmed  by the  first appellate  court, is restored.      In the  circumstances of the case we direct the parties to bear their own costs. V.D.K.                                 C.A. 209/70 dismissed                                             2280/70 allowed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 16  

438