Full Judgment Text
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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
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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
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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
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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
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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
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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
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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
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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:
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(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
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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
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(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
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property is restored, under the circumstances
mentioned in the first or the third clause of
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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.
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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
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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
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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 :
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".. 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
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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
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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,
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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
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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
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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
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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
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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.
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