http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 15  

PETITIONER: DATTATRAYA @ PRAKASH AND ORS.

       Vs.

RESPONDENT: KRISHNA RAO @ LALA SAHEB BAXI THROUGH L.RS.ETC. ETC.

DATE OF JUDGMENT20/08/1991

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KASLIWAL, N.M. (J)

CITATION:  1991 AIR 1972            1991 SCR  (3) 644  1993 SCC  Supl.  (1)  32 JT 1991 (6)   160  1991 SCALE  (2)368

ACT:     Hindu  Law--Chandurpur  Jagir--Grant--In  perpetuity and enjoyment  from  generation  to  generation--Succession   to impartible    estate--Rule   of    governance--Consideration of--Income of impartible estate--Nature of.

HEADNOTE:     One Yesaji-2, ancestor of the parties rendered meritori- ous  military service to Ranaji Scindia and  in  recognition thereof,  the  Raja of Gwalior granted  permanent  jagir  of Chandurpura village together with the buildings situated  in 100  Bighas of land and the residential Bada with  right  of enjoyment  and succession from generation to generation.  By virtue thereof, the ownership, possession and enjoyment  was continued successively for seven generations upto Dwarkanath by rule of primogeniture. Dwarkanath was the nephew  (broth- er’s  son) Of the respondent and father of appellant Nos.  1 and 2. Dwarkanath being minor at the time of his  succession to  the estate, the court of wards took over the  management and  the respondent was appointed as Superintendent  and  on his  death, since appellants 1 and 2 were minors Aruna  Rai, their mother, initially managed the estate with the  assist- ance of the respondent and subsequently the respondent  came into  full  control and management. The respondent  filed  a suit for partition .in the year 1962 of the plaint  schedule 1 to 3 properties in equal moiety and allotment of one  such share to him. He pleaded that the properties are coparcenary joint  family properties and he is entitled to a half  share therein. The respondent received maintenance from the  jagir income  at  the rate of Rs.125 per  month.  The  appellants- defendants  disputed the nature of the properties  as  joint family,  status  of  the respondent and  the  appellants  as coparceners. They referred to various accretions made to the jagir estate by their father and mother and pleaded that the jagir  being an impartible estate is the separate and  self- acquired  properties of Dattatraya-1 Dwarkanath by  rule  of primogeniture  and  the  concept of  coparcenary  and  joint family status’ are inapplicable to it, and that the respond- ent  has  thus  no share therein, but has only  a  right  of maintenance as per the law and the Custom of Gwalior  State. It  was  also added that the respondent and  his  wife  were

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 15  

given jewellery at. the time of their mar- 645 riage  which  belonged to the family of the  appellants  and some  of  them are stridhana of the 3rd defendant;  the  re- spondent  had no share therein or in the utensils  etc.  The trial court found that till the date of death of Ghanshyam-2 in  1909, he was jagirdar. Dattatraya-1 and Dwarkanath  suc- ceeded  as  Jagirdars by rule of  primogeniture.  After  the abolition of the Jagir, compensation was paid to  Dwarkanath during his life time as the eldest member of the family  and the appellant no. 1 also had been paid balance of  compensa- tion. If a joint family possesses property which was  admit- tedly  joint,  the presumption would he  that  the  property continued  to be joint and the burden lies upon  the  member who  claims  as separate property to plead and prove  it  as separate  or self-acquired property. On this reasoning,  the trim court granted preliminary decree for partition of  half share  in  schedule 1 and 2 and half share in  the  moveable property  viz., compensation amount jewellery and  utensils. The  High  Court substantially upheld the  findings  of  the trial  court. It held that rule of primogeniture and  survi- vorship  was  introduced by the Manual of Jagirdars  of  the Gwalior  State (Qwaid Jagirdaram) in the year 1913 and  with the  abolition of the Jagir in 1951 under the Madhya  Bharat Abolition  of Jagir Act 28, 1951, the properties became  the ancestral Hindu Joint family properties and they are  parti- ble,  irrespective of the fact in whose name it was  entered either  as Bhumidar in revenue papers or Jagirdar. The  High Court  while confirming the decree of the trial  court,  di- rected  the respondent to bring into hotch potch his  jewel- lery  and  the appellants to have a half share  therein  and accordingly  dismissed the appeal and the  cross-objections. Hence  this appeal by the appellants-defendants  by  special leave. Partly allowing the appeal, this Court,     HELD:  Liability to partition is an ordinary feature  of joint  family  property, but it must not  be  supposed  that joint property and partible property are mutually  converti- ble terms. [652F]     Succession  to an impartible estate is governed by  rule of  primogeniture and the eldest male member of  the  family would  succeed  by survivorship to  the  impartible  estate. [653H-654A]     The impartible estate, though descends by rule of primo- geniture  and survivorship on the eldest male member of  the family, it must also be proved that the junior members  gave up  expressly  or  by  implication  his  right  to  a  share therein.[655G] The  income  of an impartible estate is not  income  of  the undivided 646 family  but  is the income of the present  holder,  notwith- standing  that he has sons or brothers from whom he  is  not divided.  The  fact  that the son’s or  brother’s  right  to maintenance arises out of the eldest brother’s possession of impartible estate and is a right to be maintained out of the estate,  do not make it a right of a unique or  even  excep- tional  character  or involve the consequence at  Hindu  Law that  the income of the estate is not the  holder’s  income. Income  is  not  jointly enjoyed by the  party  entitled  to maintenance and the party chargeable nor can it be said that the  respective chances of each son to succeed by  survivor- ship make them all co-owners of the income with their father or  make the holder of the estate a manager on behalf  of  a Hindu  family of which he and they are the male  members  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 15  

the family. [658C-E]     The right of joint enjoyment which is ordinary  incident to  a  coparcenary, where the joint estate is  partible,  is excluded by the rule of primogeniture and impartibility. The income of an impartible estate and the accumulation of  such income are the absolute property of the holder. The  immova- ble properties would be incorporated with impartible estate. It must be proved that the holder had impressed the  immova- ble  properties  as  part of the  estate.  But  the  movable properties  will not. Movables are not an accretion  to  the estate  as in the case of an ordinary joint  family  estate. [659E].     The grant of Chandurpur Jagir was in perpetuity and  the enjoyment  is from generation to generation.  Geneology  ex- tracted herein before establishes that devolution by  survi- vorship  to  the eldest male member continued till  time  of Dwarkanath and the respondent received only maintenance from the  Jagir  estate. What was implicit was made  explicit  by Qwaid  Jagirdaran issued in Samvat 1970 by Maharaja  Scindia of Gwalior State. [659F-G]     Thus  it is indivisible and impartible and succeeded  by lineal eldest descendent of the family by rules of primogen- iture. [659H]     Baijnath  Prasad  Singh v. Tej. Bali  Singh,  48  Indian Appeals 195 A.I.R. 1921 P.C. 62; Katama Natchiar v. Raja  of Shivganga, [1863] 9 Noore Indian Appeals, 588 (P.C.); Sartaj Kuari & Anr. v. Deoraj Kuari, 15 Indian AppealS, 51;  Pratap Chandra  Deo v. Jagdish Chandra Deo, 54 Indian  Appeals  289 A.I.R.  1927  P.C.  159; Anant Shikkappa  Patil  v.  Shankar Ramchandra Patil, A.I.R. 1943 P.C. 196 at 201; Amrendra  Man Singh  v. Sanatan Singh, 60. Indian Appeals 142 A.I.R.  1933 P.C.  155; Shiba Prasad Singh v. Rani Prayag Kumari  Debi  & Ors., 59 Indian Appeals 351 A.I.R. 1932 P.C. 216; Chin- 647 nathayi @ Veeralakshmi v. Kulasekara Pandiya Naicker & Anr., [1952]  S.C.R. 241; Smt. Rani Prabha Kumari Bibi v.  Jagdish Chunder  Dhabal,  29 Indian Appeals 82=ILR 29  Calcutta  433 P.C.; Janki Pershad Singh v. Dwarka Pershad Singh, 40 Indian Appeals  170=ILR 35 Allahabad 391 P.C.; Murtaza Husain  Khan v.  Mohd. Yasin Ali Khan, 43 Indian Appeals 269=A.I.R.  1916 P.C. 89; Jagdamba Kumari v. Wazir Narain, 48 Indian  Appeals 195=A.I.R. 1921 P.C. 62; Commissioner of Income-tax,  Madras v.  Honble  Sri Ravu Swetachalapati Ramakrishna  Ranga  Rao, Rajah  of Babbili, A.I.R. 1937 Madras 515;  Commissioner  of Income-tax,  Punjab v. DeWan Bahadur Dewan Krishna  Kishore, Rais, Lahore, A.I.R. 1941 P.C.120; Mirza Raja Shri  Pushava- thi  Viziaram Gajapathi Raj Manne Sultan Bahadur &  Ors.  v. Shri  Pushavathi  Visweswar Gajapathi Raj & Ors.,  [1964]  2 S.C.R.  403; Muttu Baduganadha Tevar v. Periasami @  Udayana Tevar,  23 Indian appeals 128 P.C.; Ravi Janardhana  Krishna Ranga  Rao v. State of Madras, A.I.R. 1953 Madras 185;  Tha- kore  Shri Vinayasinghji v. Kumar Srinatwarsinghji  &  Ors., [1988]  (Supp.)  S.C.C. 133; Sri Raja Rao  Venkata  Mahipati Gangadara  Rama Rao Bahadur v. Raja of Pittapur,  47  Indian Appeals 354=A.I.R. 1918 P.C. 81; Maharajah of Jeypore & Anr. v.  Vikrama Deo Garu, 52 Indian Cases 333=A.I.R.  1919  P.C. 126;  Anant  Kibe & Ors. v. Purushottam Rao &  Ors.,  [1984] (Suppl.) S.C.C. 175, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1072  of 1976.     From  the Judgment and Order dated the 2.2.1973  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 15  

Madhya Pradesh High Court in First Appeal No. 19 of 1966. T.U. Mehta, S.N. Singh and T.N. Singh for the Appellants.     V.A.  Bobde,  Uday  U. Lalit, S.K. Gambhir,  A  G.  Rat- naparkhi, Ms. Vandana Kakre and R.A. Roman for the  Respond- ents. The Judgment of the Court was delivered by     K. RAMASWAMY, J. This appeal by special leave under Art. 136  of the Constitution of India arises against the  decree and  judgment dated February 2, 1978 in First Appeal No.  10 of 1966 of the M.P. High Court at Gwalior Bench. Krishna Rao @  Lala  Saheb, for short "respondent" laid the  Civil  Suit No..9-A of 1962 before the Addl. District Judge, Gwalior for partition of the plaint schedule 1 to 3 properties in  equal moiety and allotment of one such share to him. 648 Pending  this appeal he died and his  legal  representatives are  on record. The Trial Court by its judgment  and  decree dated January 31, 1966 granted preliminary decree for parti- tion of half share in schedule 1 and 2 and half share in the movable property, namely compensation amount, jewellery  and utensils  as  found in the inventory prepared by  the  Nazir except  the stridhana property of 3rd defendant i.e.  mother of appellants Nos. 1 and 2. The High Court while  confirming the  decree  of the Trial Court directed the  respondent  to bring  into hotch potch his jewellery and the appellants  to have  a half share therein and dismissed the appeal and  the cross objections.     The admitted facts are that one Ghanshyam Sadashiv  Baxi Saheb,  for short ’Ghanshyam-1’ was the common ancestor.  He had  two sons by name Yesaji-1 and Phatoji. Yesaji-1  had  a son  by name Ramakrishna, whose son was Yesaji @ Baba  Saheb for  short Yesadji2. Yesaji-2 rendered meritorious  military service  to Ranaji Scindhia and in recognition  thereof  the Raja  of  Gwalior  granted permanent  Jagir  of  Chandurpura village under Ex. D-20, together with the buildings situated in 100 Bighas of land and the residential Bada with right of enjoyment  and succession from generation to generation.  By virtue  thereof the ownership, possession and enjoyment  was continued successively for seven generations upto Dwarkanath by  rule of primogeniture. Ghanshyam @Tatya Saheb for  short Ghanshyam-2 had two sons by name Dattatraya Rao @ Bapu Saheb for  short Dattatraya-1 and the respondent.  Dwarkanath  was the son of Dattatraya-1. The appellant, Dattatraya @ Prakash and  Pradip  @  Anil, appellants Nos. 1 and 2  are  sons  of Dwarkanath Aruna Bai, third defendant is his widow.  Ghansh- yam-2 died on June 20, 1909. Dattatrya-1 died on February 6, 1926 and Dwarkanath died on May 19, 1956.     Dwarkanath  being minor on his succession to the  estate the  court of wards took over management and the  respondent was  appointed as a Superintendent. On death  Of  Dwarkanath since appellants 1 and 2 were minors Aruna Bai, their  moth- er, initially managed the estate with the assistance of  the respondent.  Subsequently  the  respondent  came  into  full control  and  management till date of suit.  The  respondent filed the suit for partition in the year 1962 pleading  that all  the plaint schedule 1 to 3 properties  are  coparcenary and  he is entitled to a half share therein. The  respondent received  maintenance from Jagir income at the rate  of  Rs. 125 per month.     In  the written statement, the appellants, while  admit- ting  the geneology, their residential house at  Gwalior  as ancestral; they dis- 649 puted  the nature of the properties as joint family,  states of  the  respondent and the appellant as  coparceners.  They

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 15  

admitted  that till death of Ghanshyam-2 in 1909 the  family was  joint  and thereafter they were separated  by  mess-and residence  in the year 1929. The house M No. 626  Holka  No. 101 at Gwalior was the residential old house but the  Veran- dah  and two rooms on both sides were constructed by  Datta- traya-1.  The shops in the back side of iron gate at  Kampoo Road were not existing during life time of Ghanshyam-2,  but the  lands  were purchased by Dattatraya-1  with  the  Jagir income  and the shops and .the rooms were  constructed  with the Jagir income. It was also pleaded that four shops  situ- ated  on eastern side of iron gate were constructed  by  the appellants’ mother from the compensation of the Jagir  lands and  the  personal amount belonging  to  them.Jeherin  Araji lands  were  purchased  by Dattatraya-1  from  his  personal amounts.  The rooms situated on eastern side  of  Shashikala Ranglekar was purchased and constructed during the  minority of  Dwarkanath  from the income of the Jagir.  The  property adjacent  to  the gate on the north of the Bada  namely  two rooms,  gate, the pucca house along with the well were  con- structed  from the income of the Jagir by Dattatraya-1.  The pator on the south side of the stair case was constructed by Dwarkanath from Jagir’s income, Pucca walls adjacent to  the quarters and the southern side of the main residential  Bada are estate properties and as per law and. custom of  Gwalior State  Dwarkanath  became  the owner of  the  property.  The respondent  has  no right to a share but had only  right  to maintenance..After  the death of Ghanshyam-2 the  respondent continued  to  receive maintenance from his  brother  Datta- traya-1  who  continued in possession and enjoyment  of  the Jagir as his personal property. The respondent had right  to share  only in the private property. The  residential  house except Verandah and two rooms shown as No. 1, 2 and 3 in the enclosed  map  belong to the family and  those  three  items belong  to Dattatraya-1. Accordingly it is their  plea  that the Jagir being impartible estate is the separate and  self- acquired  properties of Dattatraya-1 and Dwarkanath by  rule of  primogeniture and the concept of coparcenary  and  joint family status are inapplicable to it. The respondent has  no share therein, but has only right to maintenance as a junior member  of the family as per the law and custom  of  Gwalior State.  It was further pleaded that the respondent  and  his wife were given jewellery at the time of their marriage. The jewellery found by Nazir belong to the family of the  appel- lants  and some of them are stridhana of 3rd defendant.  The respondent  is not entitled to any share therein or  in  the utensils. The trial court found that till date of death of Ghanshyam-2 in 650 1909, he was Jagirdar. Dattatraya-1 and Dwarkanath succeeded as  Jagirdars by rule of primogeniture. After the  abolition of the Jagir compensation was paid to Dwarkanath during  his life time as the eldest member of the family, and the appel- lant  No. 1 also had been paid balance of the  compensation. If  a joint family possesses property which  was  admittedly joint  the presumption would be that the property  continued to  be joint and the burden lies upon the member who  claims and  separate property to plead and prove it as separate  or self  acquired property. The respondent was  living  jointly with his brother Dattatraya-1. Number of sale-deeds show the purchase made by Dattatraya-1. that old pators and two shops were  remodelled by the court of wards. The purchase of  the plots by Dattatraya-1 and constructions made thereon by  him on the ancestral lands are the joint family properties.  The Bada at Gwalior is the residential house and was not a  part

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 15  

of the grant in Ex. D-20. Therefore, the residential Bada on the  Kampoo  Road is an ancestral property  of  the  family. Whatever  accretions were made therein must be deemed to  be incorporated  for  the benefit of the family  unless  it  is specifically  shown that it was self-acquired  and  separate property by Ghanshyam-2 or Dattatraya-1 or Dwarkanath. After the abolition of the Jagir Dwarkanath received compensation. The four shops constructed also form joint family  property. The properties given under Ex. D-20 in the village Chandupu- ra  are  the Jagir properties. This is  also  ancestral  and impartible  property. There is no evidence to show that  out of  the  Jagir income received, any  property  purchased  or constructed  were  kept as separate  properties.  Therefore, whatever  accretions made by Dattatraya-1 for Dwarkanath  or Aruna  Bai  are joint family properties. It was  also  found that  the  respondent  did not make  any  contribution,  nor improved  the  properties. As there is no evidence  to  show that Dattatraya-1 treated the income of the property as  his separate income, the plaint schedule-1 properties are ances- tral  properties. The Jagir compensation received from  time to time also form the joint family properties. The relations between  the family was smooth and cordial till 1962.  There was no partition earlier thereto. Merely because  succession to  the Jagir was governed by the rule of primogeniture,  it did not clothe the Jagir with the incidence of separate  and self-acquired  property.  Therefore, they are  joint  family properties  liable  to partition. The jewellery  except  the stridhana  of third defendant are joint  family  properties. The  High  Court substantially upheld the  findings  of  the trial  court. It held that rule of primogeniture and  survi- vorship  was  introduced by the Manual of Jagirdars  of  the Gwalior  State (Qwaid Jagirdaran) in the year  1913  (Samwat 1970) and with the abolition of the Jagir in 1951 under  the Madhya Bharat Aboli- 651 tion  of  Jagir Act 28, 1951 (Samwat 2008)  for  short  ’the Act’,’  the  properties  became the  ancestral  Hindu  Joint Family properties and they are partible, irrespective of the fact  in  whose name it was entered either  as  Bhumidar  in revenue  papers  or Jagirdar. The rooms constructed  in  the ancestral  Bada  are accretions to the ancestral  house  and became part and parcel of it. There is no evidence that  the money spent for construction came from separate or own funds of  the appellants. All the rooms became accretions  to  the ancestral  property  and became joint family  property.  The jewellery are joint family properties to the extent found by the  Trial Court and are liable to partition. The  compensa- tion  paid  under the Act also belongs to the  joint  family property.  It directed to bring into hotch potch the  jewel- lery of the respondent for partition in equal shares.     Shri  T.U. Mehta, learned senior counsel for the  appel- lants, contended that the courts below erred in holding that the properties are joint family properties, liable to parti- tion. Since it is a Jagir grant, as per the custom and  law, the eldest male member succeeds by rule of primogeniture and survivorship. Therefore, they are the separate properties of the  eldest descendant, subject to right of  maintenance  by the junior members of the family. Despite they being members of  the undivided Hindu Joint Family, the concept of  copar- cenership cannot be applied to Jagir estate. The  respondent having had the benefit of maintenance right through, is  not entitled  as coparcener to a partition of the plaint  sched- uled  properties as the joint family properties. The  jewel- lery  are the exclusive property of  the  appellants/defend- ants-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 15  

    Shri  Bobde, learned senior counsel for the  respondent argued that though the Jagir was granted tO the named  indi- vidual, the recitals therein unmistakably point to the  fact that,  it is to be enjoyed by the family from generation  to generation. It would, therefore, be the coparcenary  proper- ty.  Appellants  and the respondent being  governed  by  the Mitakshara  Law are entitled to equal moiety. The  jewellery is  the joint family property. There is no partition at  any time.  It was further contended that after the abolition  of the  Jagir under the act, Dwarkanath or appellants  received compensation  and  the  properties were  acquired  from  the income  of the compensation. The properties  therefore,  are impressed with joint family character and are partible. Thus the decree for partition is not illegal.      The  facts, as found or not disputed in the  pleadings, are  thus:  Admittedly, Chandurpura village was  granted  as Jagir under Sanad (Ex. D-20) and thereafter the family lived in Gwalior for several gen- 652 erations  in the Bada. Certain accretions or  incorporations were  made to the properties of the family from out  of  the income  derived  from the estate  or  compensation  received under  the Act. Dattatraya-1, Dwarakanath and 3rd  defendant improved  the  properties. The  respondent,  right  through, received maintenance from the estate and did not  contribute anything  for  the  improvement of the estate.  He  had  his education  from the maintenance granted from the estate  and became  a Judicial Officer.After the abolition of the  Jagir under  the Act compensation received also was used to  build shops.  The  Jagir remained indivisible and  impartible  and devolved  successively for seven generations on  the  eldest male  lineal descendant and it continued  till  Dwarkanath’s death in 1956. They are governed by Mitakshara Hindu Law and rule  of primogeniture. Under the Act the Jagir  lands  were resumed  and Jagir was abolished. During the  management  of the estate by the Court of Wards, the respondent  admittedly worked as Superintendent. The family remained undivided till date  of  suit. There is no evidence that  any  Jagirdar  in particular,  Dattatraya-1 or Dwarkanath treated  the  accre- tions as separate or self acquired property.     From these facts the question emerges whether the plaint schedule properties are coparcenary. In our view, the Courts below fell in serious misconceptions of law. Qwaid  Jagirda- ran  only  recognised  and reiterated the  existing  law  or custom  of impartibility and indivisibility of  Jagir,  etc. and  succession  by rule of primogeniture. High  Court  also committed error in holding that impartibility came to an end with  the abolition of Jagir under the Act and that  earlier thereto and subsequent to the Act the properties were copar- cenary.  Neither court appreciated the correct  legal  posi- tion.    In Chapter 25 of Mayen’s Hindu Law, 12th Edition, at page 1065, paragraph 744 it is stated that liability to partition is an ordinary feature of joint family property, but it must not  be supposed that joint property and  partible  property are mutually convertible terms. If it were so, an impartible estate  could  never be joint property.  There  are  estates which by special law or custom descend to one member of  the family, generally the eldest, to the exclusion of the  other members  and  which are impartible, though  they  are  joint property,  in the eye of the law, belonging equally  to  the other members; and their rights are hedged in by a number of restrictions or limitations. The common instances  of this class are the ancient  zamindaries   .... or feudatory

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 15  

estates  held on military service tenure such  as   ........ royal grants .......  services such as Jagirs  ...... 653     In  Baijnath Prasad Singh v. Tej Bali Singh,  48  Indian Appeals  195=AIR  1921 P.C. 62 the Judicial  Committee  held that  succession  to  impartible estate  will  be  regulated according  to the ordinary rule of Mitakshara Law. and  that the  respondent  being a person who in joint  family  would, being eldest of the senior branch, with head of the  family, is the person designated in this impartible estate to occupy the  gaddi. Accordingly it was held that rule of  primogeni- ture would apply and not the ordinary rule of Mitakshara Law of  survivorship  that  would be  applicable  to  impartible estate.     In Katama Natchiar v. Raja of Shivganga; [1863] 9  Moore Indian Appeals, 588 (P.C.) the Board held that the Zamindari is  admitted to be in the nature of a principality  .of  im- partible and capable of enjoyment by only one member of  the family  at a time and that therefore Mitakshara law of  suc- cession  of the eldest male member would be  applicable.  In Sartai  Kuari & Anr. v. Deoraj Kuari, 15 Indian Appeals,  51 the Board held that there was no co-parcenary in  impartible estate. Pratap Chandra Deo v. Jagdish Chandra Deo, 54 Indian Appeals  289=AIR  1927 P.C. 159 ruled that there is  no  co- ownership  in an impartible estate and that,  therefore,  no right of coparcenary. survivorship would arise in an impart- ible estate.     In  Anant Bhikkappa Patii v. Shankar  Ramchandra  Patii, AIR 1943 P.C. 196 at 201 it was held that:               "Now  an  impartible  estate is  not  held  in               coparcenary,  though  it may be  joint  family               property.  It  may  devolve  as  joint  family               property as separate property of the last male               owner.  In the former case, it goes by  survi-               vorship  to that individual, among those  male               members  who in fact and in law are  undivided               in-respect of ’the ’estate, who is singled out               by  the  special  custom.  e.g.,  lineal  male               primogeniture.  In the latter case,  jointness               and survivorship are not as such in point; the               estate  devolves by inheritance from the  last               male  owner  in the order  prescribed  by  the               special  Custom or according to  the  ordinary               law of inheritance as modified by the custom." In  Amrendra Man Singh v. Sanatan Singh, 60  Indian  Appeals 242=AIR 1933 P.C. 155 it was held that the zamindari proper- ty belonged to the adopted son as to the last male owner. Thus  it  is settled law that succession  to  an  impartible estate is 654 governed by rule of primogeniture and the eldest male member of the family would succeed by survivorship to the  imparti- ble estate. It is seen from the record and it is not contro- verted even across the Bar that for seven successive genera- tions, the Jagir estate descended on the eldest male  member of the family by rule of primogeniture.     The  question then is whether the Jagir is  partible  as Hindu  Joint Family property. In Shiba Prasad Singh v.  Rani Prayag  Kumari Debi & Ors., 59 Indian Appeals  351=AIR  1932 P.C. 216 relied on by Sri Mehta, Sir Dinshan Mulla, speaking for  the  Board  held that impartibility  is  essentially  a creation  of custom. In .the case of ordinary  joint  family property,  the members of the family have (1) the  right  of partition, (2) the right to restrain alienations by the head

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 15  

of the family except for necessity, (3) the right of mainte- nance,  and  (4) the right of   survivorship. The  first  of these  rights  cannot  exist in the case  of  an  impartible estate though ancestral, from the very nature of the estate. The second and the third are incompatible with the custom of impartibility. To this extent the general law of  Mitakshara has  been  superseded by custom and the  impartible  estate, though  ancestral,  is clothed with the incidents  of  self- acquired  and separate property. But the right of  survivor- ship  is not inconsistent with the custom of  impartibility. This  right, therefore, sail retains its character of  joint family  property,  and  its devolution is  governed  by  the general  Mitakshara law applicable to such property.  Though the  other rights which a co-parecener acquires by birth  in joint  family property, no longer exist, the birth right  of the  senior  member to take by survivorship  still  remains. (emphasis  supplied) Nor is this right a mere succession  is similar to that of a reversioner succeeding on the death  of a  Hindu widow to her husband’s estate. It is a right  which is capable of being renounced and surrendered. Therefore, it follows that in order to establish that a family governed by the  Mitakshara  in which there is an  ancestral  impartible estate  has ceased to be joint it is necessary to  prove  an intention,  express  or implied, on the part of  the  junior members of the family to renounce their right of  succession to  the  estate. It is not sufficient to show  a  separation merely in food and worship.      In  Chinnathayi  @ Veeralakshmi v,  Kulasekara  Pandiya Naicker  &  Anr. [1952] SCR 24 1 this Court  held  that  the right  to  bring about partition of  an.  impartible  estate cannot  be  inferred from the power of alienation  that  the holder  there of may possess. In the case of  an  impartible estate  the power to divide it amongst the members does  not exist,  though  the power in the holder to  alienate  it  is there. This Court further held that: 655               "To  establish that an impartible  estate  has               ceased  to be joint family property  for  pur-               poses  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 intention to  impress               upon  the zamindari the character of  separate               property."                  In Shiba Prasad Singh’s case it was further               held thus:                  "surely then the property will pass not  as               his  separat property,-but by survivorship  as               joint  property--devolu- tion by  survivorship               being   another  incident  of  an   impartible               estate.  The .fact is that when  self-acquired               property  is   incorporated with  an  ordinary               joint family estate the pro- perty so incorpo-               rated  is  impressed with  all  the  incidents               whic attach to an ordinary joint family estate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 15  

             and   when        self-acquired  property   is               incorporated with an ancestral      impartible               estate  the  property so incorporated  is  im-               presse with all the incidents which attach  to               an ancestral impart ble estate.The mere possi-               bility therefore of the holder      alienating               the property after incorporation is no  reason               for     denying  to him the  power  which  the               Hindu  law gives him of changing the  mode  of               descent   to  his  property.  Nor   is   there               anything  in that rule of law which is  incon-               sistent with the  custom of impartibility."    Accordingly  it must be held that the  impartible  estate though descends by rule of primogeniture and survivorship on the eldest male member of the family, it must also be proved that the junior members gave up expressly or by  implication his right to a share therein.    The  further question is whether it is competent  to  the holders ofan ancestral impartible estate to incorporate with the estate other properties acquired or incorporated by  him or  them  with the income ofthe impartible estate.  In  Smt. Rani Prabha Kumari Dibi v. Jagdish Chunder Dhabal, 29 Indian Appeals 82=ILR 29 Calcutta 433 (P.C.) 656 the  question was regarding succession to an  ancestral  im- partible  estate and four Mauzas that has been purchased  on behalf of the last holder out of the savings of the  estate. The Board held that there must be evidence to establish  the intention  of the holder express Or implied  to  incorporate the property as part of the estate. Though the collection of the rents was by the estate servant and the papers were kept in  the  estate, the Board held that the  evidence  was  not sufficient to hold that the Raja intended to incorporate the four  mauzas  with ancestral estate for the purpose  of  his succession. The 4 Mauzas must, therefore, follow the rule of Mitakshara  as to self-acquired property. In  Janki  Pershad Singh v. Dwarka Pershad Singh, 40 Indian Appeals 170=ILR  35 Allahabad  391  P.C. the movable  and  immovable  properties acquired from the income of the estate and were incorporated as part of the estate, yet the Board held that the  question whether the properties acquired by an owner becomes part  of the ancestral estate for the purpose of the succession would be  considered from the intention of the holder of  the  es- tate. It was held, on facts, that no sufficient evidence was adduced  to establish such an intention. In  Murtaza  Husain Khan v. Mohd. Yasin Ali Khan, 43 Indian Appeals 269=AIR 1916 P.C.  89 as regards immovable properties the same view.  was reiterated.  In Jagdamba Kumari v. Wazir Narain,  48  Indian Appeals 195=AIR 1921 P.C. 62 the Board held that the  income of  ancestral impartible estate was the absolute  properties of  the  owner  of the estate and not an  accretion  to  the estate as in the case of ordinary joint family estate. While reversing the judgment of the High Court it held:               "It is possible that this confusion is due  to               the consideration of the position with  regard               to  an ordinary joint family estate.In such  a               case  the  income, equally  with  the  corpus,               forms part of the family property, and if  the               owner mixes his own moneys with the moneys  of               the  family--as, for example, by  putting  the               whole  into  one account at the  bank,  or  by               treating  them  in his accounts  as  indistin-               guishable-his  own  earnings  share  with  the               property  with  which  they  are  mingled  the               character of the joint family property; but no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 15  

             such considerations necessarily, apply to  the               income from impartible property."     In Jagdamba Prasad’s case the Board held that the income received  is the absolute property of the owner of  the  im- partible estate and it does not attach to the estate as does the  income  of ordinary ancestral estate  attaches  to  the estate.  While immovable property can be impressed with  the impartible estate "movable property cannot". It 657 was  further held that the income received is  the  absolute property of the owner of the estate it derives and in no way from  the  property he might have by his own saving.  It  is wrong assumption to make that the income of the property  of that nature is so effected’by the sources from which it came that still retains itself original character. In Commission- er  of Income tax, Madras v. Honble Sri Ravu  Swetachalapati Ramakrishna Ranga Rao, Rajah of Babbili, AIR 1937 Madras 515 the  full Bench held that the income received by the  holder of  the impartible estate was not received as. a  member  of the  Hindu  Undivided  Family. The income is.  his  and  the junior members have no right therein. In Shiba Prasad’s case (1932),  the Board held that it is possible  to  incorporate immovable  property  as a part of the  estate,  but  movable properties  are the separate properties and they  cannot  be incorporated  and  the doctrine of  incorporation  does  not apply in the words thus:               "The  rule  of succession in  such  a  case.is               recognised by the State as part of the law  of               family,  though it is no more than the  result               of a course of conduct of individual  subjects               of  the State constituting the family.  "Under               the  Hindu  system  of  law,  clear  proof  of               usage."  even  if it be a family  usage  "will               outweigh the written text of the law;"     In  Commissioner of Income-tax, Punjab v. Dewan  Bahadur Dewan  Krishna  Kishore,  Rais, Lahore, AIR  1941  P.C.  120 SirGeorge  Rankin speaking, for the Board, held that when  a family  governed  by the Mitakshara, by custom the  rule  of primogeniture controls the devolution of impartible  proper- ty,  the custom of impartibility does not touch the  succes- sion  since  the right of survivorship is  not  inconsistent with the custom; hence the estate retains its character.  of joint  family property and devolves by the general law  upon the person who, being in fact and in law joint in respect of the  estate, is also the senior member in the  senior  line. Hence  a  holder of the estate receiving income  from  house property cannot be said to be the owner of such property. It is  the  joint family that is the owner and,  therefore,  he cannot  be  assessed  as an individual in  respect  of  such income.      In  Mirza Raja Shri Pushavathi Viziaram  Gajapathi  Raj Manne  Sultan  Bahadur & Ors. v. Shri  Pushavathi  Visweswar Gajapathi Raj & Ors [1964] 2 SCR 403 it was held that immov- able  property subsequently acquired also would  become  im- partible  and ceases to be partible and  becomes  impartible but  the  theory of incorporation cannot  apply  to  movable property.  In ease there is a family custom even in  respect of movable properties, as per the custom those movable pro- 658 perties also become part of impartible estate. Incorporation is a matter of intention. It is only where evidence has been adduced to show the intention of the acquirer to incorporate the  property aCquired by him with the impartible estate  of which he is the holder, then an inference can be drawn about such  incorporation.  The  question, therefore,  is  one  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 15  

intention of acquirer. By custom in the family the jewellery would be treated to form part of the regalia which belong to the holder of the estate and then would form part of impart- ible  estate. In that case as per custom in the family  cer- tain jewellery were treated as part of impartible estate and belonged to the estate.     The  income of an impartible estate  thus is not  income of  the  undivided family but is the income of  the  present holder,  notwithstanding that he has sons or  brothers  from whom he is not divided. The fact that the son’s or brother’s right  to  maintenance arises out of  the  eldest  brother’s possession  of  impartible  estate and is .a  right  to  .be maintained  out of the estate, do not make it a right  of  a unique  or even exceptional character or involve the  conse- quence at Hindu Law that the income of the estate is not the holder’s income. Income is not. jointly enjoyed by the party entitled to maintenance and the party chargeable nor can  it be  said that the respective chances of each son to  succeed by  survivorship make them all co-owners of the income  with their  father or make the holder of the estate a manager  on behalf  of a Hindu family of which he and they are the  male members of the family.     It  is equally well settled law that the holder  of  im- partible  estate can incorporate other properties  belonging to  him with that estate so as to make them also  impartible and descendable to a single heir by survivorship. It is  one of intentions to be proved as a fact whether the  accretions are  his  separate  properties or incorporated  as  part  of impartible  estate. The intention may be express or  implied by conduct or treatment of the properties. In Muttu  Baduga- nadha Tevar v. Periasami @ Udayana Tevar, 23 Indian  Appeals 128  (P.C,)  the  Privy Council held that  the  doctrine  of representation  between  the  father and  his  three  lineal descendants has been on the assumption that he is reborn  in them  and the eldest to exclude his brother is continued  to his lineal male heirs. In Ravi Janardhana Krishna Ranga  Rao v.  State  of Madras, AIR 1953 Madras 185 relied on  by  Sri Mehta,  it was held that in the case of an estate  to  which the  incident of impartibility attaches. by  custom,  custom supersedes  the  general Mithakshara law  excepting  in  the matter  of devolution of the property by right of  survivor- ship.  When an impartible estate was aCquired by  the  Govt. under the     659            . Madras Estates (Abolition and ConVersion into Ryotwari)  Act compensation received retains the incident of  impartibility attached  to  the estate and the principle  that  conversion would not alter the nature ofthe estate is universal. In  Thakore Shri Vinayasinghji v. Kumar  Srinatwarsinghji  & Ors.,[1988]  (Supp.)  SCC 133 relied on by  the  appellants, this  court held thatthere is no restraint on the  power  of alienation of the holder of theimpartible estate. There is a right  of survivorship by birth to the seniormembers of  the family, but in all other respects it is clothed with  thein- cidents  of  self-acquired and separate  property  with  the holder  ofimpartible estate and unlimited right of  acquisi- tion not only by transferbut by will. In Sri Raja Rao Venka- ta  Mahipati Gangadara Rama RaoBahadur v. Raja of  Pittapur, 47 Indian Appeals 354=AIR 1918 P.C. 81(second Pittapur case) and  in Maharajah of Jeypore & Anr. v. VikramaDeo  Garu,  52 Indian  Cases 333=AIR 1919 P.C. 126 the Board alsoheld  that apart  from  custom  and  from  near  relationship  to   the holder,the  junior  members of the family have no  right  to maintenance out ofthe income of the impartible estate.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 15  

It  is also thus well settled law that the right  of  joint enjoyment which is ordinary incident to a coparcenary, where the  joint  estate is partible, is excluded by the  rule  of primogeniture and impartibility. The income of an impartible estate   and  the  accumulation  of  such  income  are   the absolute  .property of the holder. The immovable  properties would  be  incorporated with impartible estate. It  must  be proved  that the holder had impressed the immovable  proper- ties as part of the estate. But the movable properties  will not.  Movables are not an accretion to the estate as in  the case of an ordinary joint family estate.      It  is seen that the grant of Chandurpur Jagir  was  in perpetuity  and the enjoyment is from generation to  genera- tion-  Geneology  abstracted hereinbefore  establishes  that devolution by survivorship to the eldest male member contin- ued  till  time of Dwarakanath and the  respondent  received only  maintenance from the Jagir estate. What was  implicit, was made explicit by Quaid Jagirdaran issued in Samwat  1970 by  the Maharaja Scindhia of Gwalior State. In  paragraph  2 thereof  it has been stated that Jagir grant shall be  indi- visible  and  impartible  property. In paragraph  2  of  the preamble  it is stated that the Jagir in its entirily  would continue in the family in which they were conferred. Thus it is indivisible and impartible and succeeded by lineal eldest descendent of the family by rules of primogeniture. 660      Chandarpura  Jagir was granted under Ex. D-20 with  100 Bighas  of lands and the buildings situated therein,  accre- tions  made in such estate out of its income are  impartible estate  governed by the rule of primogeniture and  was  suc- ceeded  by Dwarkanath as last eldest male descendant in  the family. Therefore, they were not the joint family properties but are separate properties of Dwarkanath and the respondent has  no right to a share therein as a coparcener. The  other lands acquired from the income thereof stand incorporated as part of the Jagir and are not partible. Section 9 of the Act recognises  the existing legal position and that the  Junior member  has  only right to maintenance and  directs  payment thereof out of the compensation amount and creates a  charge thereon. Therefore, the properties enumerated in items 1  to 3  and  5 of schedule 2 are not partible..  The  preliminary decree  in  that regard is set aside. There  appears  to  be dispute regarding item 4. So it is left out to be decided in separate proceedings.      Both  the  courts found as a fact that  the  accretions were from out of the income of the Jagir. Schedule 1  ances- tral  residential  Bada  and other  properties  situated  at Gwalior  are not covered by the sanad Ex. D-20.  Admittedly, all  the,  members of the joint family  lived  therein.  The prior partition in 1929 set up by the appellants was negated by  the  courts below. Though  Dattatraya-1  and  Dwarkanath improved  the properties from the income of Jagir estate  as part of the joint estate, there is no evidence to  establish that either Dattatraya-1 or Dwarkanath treated those proper- ties as their separate or self acquired properties. Both the courts  found as a fact that accretions formed part of.  the joint. family properties. Equally there is no evidence  that the  respondent  had given up his share therein  either  ex- pressly or by implication by conduct. His assertion to be  a coparcener  and the properties to be coparcenary shows  that he continued to claim to be a member of the joint family and admittedly  the properties are joint. The  accretions  stood blended with ancestral joint family properties. Under s. 3 of the Act what was resumed was only Jagir lands. Resumption  means taking back what was given; what  was  re-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 15  

sumed  are the lands and not the property of a  person  from whom it was taken by the rightful owner. Therefore. what was resumed is the right, title and interest in the Jagir  lands covered  by the provisions of the Act and  compensation  was paid  in lieu thereof. Under s. 5(b)(i) notwithstanding  the vesting in the State under S. 4 thereof all Open  enclosures used  for   ........  domestic purposes  and  in  continuous possession  for 12 years immediately before the date of  the resumption; (II) all open house sites purchased for valuable consideration; (III) all private 661 buildings,   places   of  worship,  wells,   etc.   situated in  ......  house sitespecified in clause (I) and (II); (IV) all  groves wherever situated andlands  appurtenant  thereto shall continue to belong to and be held by the Jagirdar  and be  settled on him; (V) all ’tanks, trees, private  wellsand buildings in the occupied lands shall continue to belong  to or  beheld by the family. Thus it is clear that all  private properties  including  buildings in the jagir belong  to  or held  by  the  Jagirdar remained to bethe  property  of  the Jagirdar.  All  private properties in  the  Jagir  otherthan impartible  Jagir, therefore, rem’ained to be  joint  family property.We, therefore, hold that schedule I properties  are partible. The pre-liminary decree for partition of them  are Upheld.           ’      It  is seen that 100 bighas of land in Chandurpura  was granted as Jagir. What had remained after the Act is  hardly 5.41  bighas. So the rest of the lands, obviously,  was  re- sumed  by the Government, under the Act. By operation of  s. 18  of  the  Act it is Jagirdar who  is  entitled  toreceive compensation money payable under the Act. Therefore, themon- ey received towards compensation of Jagir lands also retains thecharacter as impartible. Under the Act by operation of s. 19 of the Act the Jagirdar is declared to be pucca tenant of Khudkhast lands of Dwarkanath. From the impugned judgment it is  clear  that there are plethora of precedents  of  Madhya Pradesh  High Court that after the abolition of the  estates under the Act the lands became joint family properties which received approval from Anant Kibe & Ors. v.Purushottam Rao & Ors., [1984] (Suppl.) SCC 175 relied on by Sri Bobde. There- in this court held that the combined effect of ss. 158(1)(b) and 164 of the M.P. Land Revenue Code was that the  incident of  impartibility and the special mode of Succession by  the rule  of  primogeniture which were granted in terms  of  the grant  of  inam lands under the Jagir  Manual  stood  extin- guished. Bhumiswami right was conferred on the holder of the land  i.e.  Dwarkanath- In Madhya Bharat  Land  Revenue  and Tenancy  Act, 1950 by operation of ss. 54(7), 69 and 82  the lands  become the pucca tenancy of Bhumiswami  i.e.  Dwarka- nath. Therefore, the devolution of the right of puccatenancy is  by  succession  opened  to the  appellants  Nos.  1  and 2.Accordingly  we  hold that Item 2, 3 and 5 of  schedule  2 lands become the properties of the appellants.      Cash  grant  of  item  1 in schedule  3  of  a  sum  of Rs.6895.00  is  to  the family the  respondent  had  already received maintenance as a Junior member from the family  and so  he is not entitled again to a share therein. The  decree is  accordingly set aside. Regarding item 2 by operation  of s. 18 of the Act the Jagirdar is entitled to it and that, 662 therefore, the respondent had no share ’therein. The  jewel- lery and utensils being movable properties are separate  and personal  propertiesbelonging to the appellants.  Admittedly the  respondent  was, given jewellery at his  marriage  etc. Therefore,  the  jewellery and utensils are  not  liable  to

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

partition. The decree for partition of them is set aside. The appeal is partly allowed. The judgment and decree of the trial court as confirmed by the High Court to the extent  of all  the  items  in schedule 1 for partition  in  two  equal shares and allotment of one such share to the respondent  is confirmed. The decree for partition of schedule 2 and 3  and of the jewellery and utensils is set aside.     The  appeal is allowed to the above extent, but  parties are directed to bear their own costs. Y.L.                                          Appeal   patly allowed. 663