JUDGMENT
Ramratna Singh, J.
1. The facts giving rise to this appeal by the plaintiff are these. Bhaiya Rudra Pratap Deo, the original plaintiff, was the holder of an impartible estate known as Nagaruntari Estate in the district of Pakamau, the succession to which used to be governed by the rule of lineal primogeniture, the junior members of the family being entitled to khorposh or maintenance grants, subiect to payment of quit rent and also to resumption on extinction ot any heii in the male line. The estate was in charge of officials under the Chota Nagpur Encumbered Estates Act from March 1932 until it was released in October, 1945 The estates vested in the State of Bihar under tht Bihar Land Reforms Act, 1950, in pursuance of a notification dated 5-11-1951. although on account of some litigation it came into the possession of the State Government sometime later.
2. The father of the defendant respondent No. 1 was the younger brother of Rudra Pratap Deo and he had been given some maintenance grant Rudra Pratap transferred his interest in eight villages as maintenance grant to the defendant under an unstamped and unregistered document dated 14-4-1952 It included eight villages, including villages Sigsigi and Patihari. But the case of Rudra Pratap was that the last named two villages were fraudulently included in the document by the defendant by bringing his (plaintiff’s) employees in collusion with him (defendant) The State of Bihar did not. however, recognise this grant in respect of any of these eight villages on the basis of an enquiry under Section 4 (h) of the 1950 Act and in view of the provisions of Section 12A of the Chota Nagpur Encumbered Estates Act, according to which the holder of an estate cannot, even after release from the purview of the Act, alienate any property appertaining to the estate without the previous sanction of the Divisional Commissioner.
3. Subsequently, there was a dispute between Rudra Pratap and the defendant regarding the possession of 170.53 acres of land appertaining to village Sigsigi giving rise to a proceeding under Section 144 of the Criminal Procedure Code, which was converted into one under Section 145, which was decided against the plaintiffs on 4-7-1955 and possession of the defendant over the suit land was accepted. Hence, the suit was instituted on 9-7-1955 by Rudra Pratap for recovery of possession of this area with mesne profits. The original plaintiff died in September 1957 and his two sons and four widows (of whom the first son is the appellant and the others are respondents here) were substituted in his place as plaintiffs. It may be also stated that the Hindu Succession Act, 1956 came into force on the 17th June, 1956; and impartible estatet were abolished by this Act.
4. Both the courts decided the suit against the plaintiffs Their findings are:
(1) Vhaita Rudra Pratap Deo had given his interest in the eight villages, including Sigsigi and Patihari in khorposh and in proof thereof executed the document dated 14-4-1952 in favour of the defendant.
(2) The grant of this khorposh by Rudra Pratap Deo after the release of his estate from the management under the Encumbered Estates Act without the sanction of the Commissioner was void under Section 12-A if the Act, and it was also void on the ground that after the vesting of the estate in the State of Bihar under the Land Reforms Act Rudra Pratap had become raiyat of the cultivated land under Section 6 of the latter Act and such raiyati right could not be transferred without a registered document on account of certain provisions of the Chota Nagpur Tenancy Act.
(3) The defendant was in possession of the suit land as a khorposhdar not as a trespasser and, therefore, not liable tn be evicted on this ground alone.
(4) The Nagaruntari Estate was an ancestral impartible estate in the hands of Rudra Pratap governed by the rule of lineal primogeniture.
(5) Custom of impartibility of the estate did not survive after the commencement of the Hindu Succession Act. 1956: and the court can take notice of the change in law during the pendency of the litigation
(6) The Nagaruntari Estate became, after the commencement of the Act of 1956, an ordinary family ioint property of the parties; and, therefore, after the death of Rudra Pratap. only his interest not the entire estate would pass to his sons and widows and, therefore, the defendant was in possession of the suit property as a co-sharer.
Findings Nos. (1), (2), (4) and (5) were not challenged by either party for the purpose of this appeal. It was also conceded by counsel for both the parties that the right, which Rudra Pratap had acquired under the rule of primogeniture, came into existence when his father died and that right remained unaffected until his death in September, 1957, in spite of the coming into force of the Act of 1956 on 17-6-1956, because Ss. 4 and 5 thereof merely destroy the custom of impartibility but do not purport to affect the existing rights, the language of the sections being expressly prospective.
5. It would be convenient, first of all. to examine the incidents of the ancestral impartible estate in the hands of Bhaiya Rudra Pratap Deo. The law appears to be settled by the decisions of the Privy Council and the Supreme Court. In Rani Sartaj Kuari v. Rani Deorai Kuari, 15 Ind App 51 (PC), a gift by the holder of an ancestral impartible estate in favour of the holder’s-junior Rani was challenged on behalf of his minoi son through the senior Rani; and it was: held to be valid. Their Lordships said:
“The property in the paternal or ances-Lial estate acquired by birth under the Mitakshara law. is, in their Lordships’ opinion, so connected with the right to a partition, that it does not exist where there is no right to it…..By the custom or usage the eldest son succeeds to the whole estate on the death of the father, as he would if the property were held in severalty. It is difficult to reconcile this mode of succession with the rights of a joint family and to hold that there is a joint ownership, which is a restraint upon alienation….. 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 . . . ”
The case of Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of Wards, (1899) 26 Ind App 83 (PC) dealt with a will by the holder of the estate and it was held to be valid. Following the decision in the case of Rani Sartaj Kuari, (1887) 15 Ind App 51 (PC), it was held that an impartible estate is not inalienable by will or otherwise by virtue of only its impartibility, and in the absence of proof of some special family custom or tenure attaching to the zamindari and having that effect. In Raja Venkata Mahipati Gangadhara Rama Rao v. Raja of Pittapur, 45 Ind App 148 = (AIR 1918 PC 81), it was held that as “an impartible zamindari is the creature of custom and it is of its essence that no coparcenary in it exists” members of the family are not entitled to maintenance in the absence of a custom affirming a right of maintenance. In respect of the decision in the case of Rani Sartaj Kuari, the Privy Council said in Baijnath Prasad Singh v. Tej Bali Singh, 48 Ind App 195 = (AIR 1921 PC 62):
“Now what was decided was that in an impartible raj there was no restriction on the power of alienation by the member of the family who was on the Gaddi and was in possession, in respect that there was no such right of co-ownership in the other members as to give them a title to prevent such alienation. The right of the other members that was being considered was a presently existing right. The chance which each member might have of a succession emerging in his favour was obviously outside the sphere of inquiry.”
Their Lordships also quoted with approval an observation from the Tipperah case, (1867-69) 12 Moo Ind App 523 (PC) and said: “This is the keynote of the position”. The said observation read thus: ”When a custom is found to exist, it supersedes the general law, which however, still regulated all beyond the custom.”
In Rani Jagadamba v. Wazir Narain, 50 Ind App 1 = (AIR 1923 PC 59) it was held that the produce of the impartible estate ordinarily does not belong to and form an accretion to the original property. The income when received is the absolute property of the owner of the impartible estate. It differs in no way from property that he might have gained by his own effort, or that had come to him. in circumstances entirely disassociated from the ownership of the Raj. fn Protap Chandra Deo v. Jagadish Chandra Deo, 54 Ind App 289 = (AIR 1927 PC 159), it was held that the holder of an impartible zamindari can alienate it by will although the family is undivided, unless a family custom precluding him from doing so is proved. Their Lordships approved the decisions in the cases of Rani Sartaj Kuari, (1887) 15 Tnd App 51 (PC) and Baijnath Prashad Singh 48 Ind App 195 = (AIR 1921 PC 62). In Shiba Prasad Singh v. Rani Prayas Kumari Debi, 59 Ind App 331 = (AIR 1932 PC 216), it was held that the right of survivorship is not inconsistent with a custom of impartibility, and it applies to the devolution of an impartible estate in a Mitakshara joint family. In order to establish that the family has ceased to be joint it is necessary to prove an intention express or implied, on the part of the junior members to renounce their right of succession; it is not sufficient to show a separation in food and worship merely. Their Lordships of the Judicial Committee discussed all the earlier decisions before coming to this conclusion; and it would be profitable to quote the following passage:
“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 of the family except for necessity; (3) the right of maintenance; and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartibility, as laid down in Sartaj Kuari’s case and the first Puttapur case; and so also the third, as held in the second Pittapur case. To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though andestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartiality. This right, therefore, still remains, and this is what was held in Baijnath’s case. To this extent the. estate still retains its character of joint family property and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights which a coparcener acquires by birth in joint family property no longer exist, the birth-right of the senior member to take by survivorship still remains. Nor is this right a mere spes successionis similar to that of a reversioner succeeding on the death ol a Hindu widow to her husband’s estate. It is a right” which is capable of being renounced and surrendered.”
In Commissioner of Income-tax, Punjab etc. v. Krishna Kishore, 68 Ind App 155 = (AIR 1941 PC 120), their Lordships of the Judicial Committee reiterated that since Baijnath Prashad Singh’s case, 48 Ind App 195 = (AIR 1921 PC 62), it has been settled law that property, though impartible, may be the ancestral property of a ioint family, in such cases the successor falls to be designated according to the ordinary rule of the Mitakshara, and quoted the aforesaid passage from the case of Shiba Prasad Singh 59 Ind App 331 = (AIR 1932 PC 216). Another observation of their Lordships is important and it reads thus:
”Though the co-ownership of the junior member may be ‘in a sense’ only, carrying no present right to joint possession, if the question be whether the Hindu undivided family or the present holder is owner of the estate the answer of the Hindu law is that it is joint family property.”
In Anant Bhikappa v. Shankar Ramchandra 70 Ind App 232 : (AIR 1943 PC 196), their Lordships of the Judicial Committee expressed the difference between coparcenary property and joint family property, when they said, with reference to the case of Rani Sartaj Kuari (1887) 15 Ind App 51 (PC); that an impartible estate is not held in coparcenary, though it may be joint family property. The Privy Council decisions were considered and the views expressed therein were approved by the Supreme Court in two cases ; viz., Chinnathayi v. K. Pandiya Naicker, 1952 (3) SCR 241 = (AIR 1952 SC 29): and Pushpa-vathi Vijayaram Gajapathi v. Pushvathi Visweshwar Gajapathi Raj, 1964 (2) SCR 403. = (AIR 1964 SC 118). In the first case, their Lordships said 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 01 implied, on the part of the junior members of the family to give up their chance of succeeding to the estate. 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 relinquish-ment of the right of succession and an intention to impress upon the zamindari the character of separate property.
In the case of an impartible estate the power to divide it amongst the members of the family does not exist though the power in the holder to alienate it is there, and from the existence of the one power the other cannot, be deduced, as it is destructive of the very nature and character of the estate and makes it partible property in the second case, their Lordships observed that an ancestral estate to which the holder lias succeeded by the custom of primogeniture is part of the joint estate of the undivided Hindu family. Though the other lights enjoyed by member ot a joint Hindu family are inconsistent in the case of an impartible estate the right of survivorship still exists. Unless the power is excluded by statute or custom the holder of customary impartible estate, by a declaration of his intention, can incorporate with the estate his self-acquired immovable property and thereupon the said property accrues to the estate and us impressed with all its incidents including a custom of descent by primogeniture. In all such cases the crucial test is one of intention. A holder oi an impartible estate can alienate the estate by gilt inter vivos, or even by a will, though the family is undivided; the only limitation on this power could be by a family custom to the contrary or the conditions ot the tenure which have the same effect.
6. In view of the aforesaid well settled propositions of law, Rudra Pratap was entitled to all the income from the estate and he was competent to make any kind of alienation of the entire estate or a part of it; but on account of the existence of the right of survivorship, the estate retained its character of joint family property and its devolution will be governed by the joint Mitakshara law applicable to such property.
This was the position up to the date of the commencement of the Hindu Succession Act, 1956. It has now to be seen; What is the position after the commencement ol that Act? The courts below have taken into consideration the effect of this Act. Mr. Lal Narayan Sinha conceded that the court is competent to take notice of the change in the law; but he submitted that the courts below were not competent to take notice of the death of Rudra Pratap during the pendency of the suit, because, in the instant case, it is not necessary to do so in order to shorten litigation or to do complete justice between the parties. The decisions in Lach-meshwar Prasad v. Keshwar Lal, (1940) FCR 84= (AIR 1941 FC 5); Kotturuswami v, Veer-avva, 1959 Supp (1) SCR 968 = (AIR 1959 SC 577); and State of Uttar Pradesh v. Muhammad Saadat Ali Khan, 1961 (1) SCR 82 = (AIR 1960 SC 1283) are authorities for the proposition that even the appellate court can take notice of a change in the law during the pendency of a litigation. In the case of Kitturuswami, 1959 Supp (1) SCR 968 = (AIR 1959 SC 577) the Supreme Court took notice of the Hindu Succession Act, 1956. Mr. Lalnarayan Sinha submitted, however that on the death at the original plaintiff, i. e. Rudra Pratap, if there be any question of the defendant acquiring anv fight which he did not possess on the date of the institution of the suit and if it depends un questions of fact, viz. the nature of the estate and the nature of the status of the parties, then it would not be a proper case for taking subsequent events into account; there was no issue raised at to the jointness’ or separation of the defendant from Rudra Pratap. but in view of the right of that plaintiff, such an issue would be irrelevant, and. therefore, no evidence was adduced hence, the courts below were not iustified in acting on the presumption that the defendant continued to be a member of the joint family along with Rudra Pratap and his children, in the absence of a plea of separation in the plaint.
In support of his argument, he relied on bench decision of this court in Bhola Ram v. Peari Devi, AIR 1962 Pat 168. But the facts of that case were completely different from those of the instant case, as will appear from the following passage :–
“In other words, the question is whether by taking notice of the subsequent events it is possible to shorten litigation or to do complete justice between the parties. The answer to this question, in my opinion, is in the negative. It is not a case wherein notice has to be taken merely of the provisions of the Hindu Succession Act, 1956. in view of the finding that the deed of gift was invalid, the will executed by Sheodutt still remains unrevoked, and under the will, if probated, persons other than the donees under the gift would be entitled to the properties of Sheodutt. The defendants of the present suit would also be entitled to dispute the will and object to the grant of probate, because in the absence of the will they would be the next reversioner of Sheodutt. Moreover, the claim of the plaintiffs in the present suit is based entirely on the title derived from the gift. It is not possible, therefore, to shorten litigation or to do complete iustice to the parties even if we take notice of the subsequent events.
It is also obvious that the original relief
had not by reason of subsequent events, be
come inappropriate because if the gift were
held to be valid therf would be no occasion
to take notice of subsequent events, namely,
the death of Sheodutt’s widow and the
Hindu Succession Act. 1956 In the circum
stances, the ordinary rule must be followed
in the present case and the suit must be de
cided in all its stages on the cause of action
as it existed at the date of its commence
ment.”
7. In the instant case, however, the position is quite different, as will appear from an examination of the plaint of the suit which was instituted by Rudra Pratap on 9-7-55. After the commencement of the Act of 1956. the contents of paragraph 1 of the olaint to the effect that the plaintiff was ex-proprietor of an impartible estate where succession is governed by the rule of lineal orimogeniture and that the junior members were entitled to khorposh grants, subject to resumption, would become irrelevant for the reliefs sought, except in respect ol mesne profits prior to such commencement. Even the relief for recovery of possession could not have been granted to Rudra Pratap as the holder of an impartible estate aftei the commencement of the Act. The assertion, in para. 15 of the plaint that the defendant had acquired no right or title to or possession over anv of the eight villages or a portion thereof which is consequential to the assertion in paragraph 1 of the plaint, would require modification. After the death of Rudra Pratap. there would be further change in the position. It was conceded by Mr. Lalnarayan Sinha that Sections 4 and 5 of the Act of 1956 destroy the custom of impartibility, but he added that they do not purport to affect the existing rights, inasmuch as the language of the two sections is expressly prospective Because of the change in the law. there was difference even among the sons and widows of Rudra Pratap after his death. His eldest son made an application to be substituted as the sole plaintiff in the place of his father, while his second son and four widows also claimed by separate petitions to be substituted as the heirs of the deceased plaintiff. The trial court made all ot them provisional plaintiffs and put the eldest son as plaintiff No. 1. in charge of prosecuting the suit. This amendment in the plaint was made on 18-11-57. But no other amendment in the plaint was made either after the commencement of the Act of 1956 or after the death of the original plaintiff, except in the relief paragraph, the amendment being for declaration of the title of the plaintiffs to the value of the grains in the custody of the police and a decree for mesne profits.
It was the duty of the original plaintiff to make necessary amendments after the commencement of that Act and the duty of the substituted plaintiffs to make amendments after the death of the original plaintiff, clearly setting cut their case as a consequence of the commencement of the Act. They were expected to know the legal position, particularly when they were prosecuting the suit — the well settled law being that in the absence of facts showing a clear intention to renounce or surrender any interest in the estate or any relinquishment of the right of succession and an intention to impress upon the estate the character of separate property by the junior members of the joint family, the succession to an ancestral impartible estate is governed by the rule of survivorship. Of course, so long as the estate retains the character of impartibility. the right to partition and the right to joint possession do not exist: as regards future rights, i. e. the right to survivorship, the estate is to be treated as coparcenary property, so that on the death of intestate or the last holder, it will devolve by survivorship This was the legal position before the commencement of the Act of 1956, cut after such commencement, the rights of the members other than the holder of the estate which had been eclipsed for the time being on account of the custom of impartibility revive and thus other members are entitled to claim after the death of the last holder, all the rights available to a member of the undivided Mitakshara family. In the absence of any plea of separation of Rudra Fratap from the defendant or his father, the courts below were justified in acting on the presumption that the family continued to be joint and the ancestral estate continued to belong to the joint family; in the absence of that plea, no issue regarding joint-ness or separation could be raised, and consequently no evidence could have been adduced For all this, the original plaintiff and the substituted plaintiffs are to blame, and the plaintiffs respondents cannot now turn round and attack the judgments of the courts below for having taken the change in law and the death of the original plaintiff during the pendency of the suit into consideration.
Mr. Sinha submitted that the defendant may raise the question of separation or joint-ness and seek necessary relief on account of these changes in a separate suit. This course would obviously lengthen litigation; arid one of the grounds to take notice of the subsequent events is to shorten litigation. It is evident that after the death of the original plaintiff, his eldest son alone could not succeed to the estate after the commencement of the Act of 1956, and, therefore, in order to grant any relief, as prayed for in the plaint, it would be absolutely necessary to decide whether only the eldest son of the original plaintiff or both his sons and the four widows would be entitled to get a decree for possession and mesne profits as also the grains in the custody of the police. For this purpose, therefore, the courts below could not but take notice of the change in law and the death of the original plaintiff. Hence, it would be absolutely unjust not to take into consideration the subsequent events for the purpose of deciding the rights of the defendant vis-a-vis the plaintiffs. Thus it is clear that it was essential for the courts below to take notice of the events in order to shorten litigation and to do complete justice between the parties. The contention of Mr. Sinha, therefore, fails; and the courts below rightly took notice of the change in law as also the death of Rudra Pratap.
8. The next question to be considered is: What was the nature of the estate (including the suit land) in the hands of Rudra Pratap at different stages? In view of the decisions of the Privy Council and the Supreme Court, it is clear that, before the commencement of the Act of 1956. he was entitled to the exclusive possession of the estate, the income of the estate belong-ed to him exclusively and inasmuch at he could transfer the entire estate even by gift or will he had an unqualified and unrestricted power of alienation, but at the same Lime the entire estate remained the property of the joint family, of which even the defendant was a member, though the defendant had no “present right to possession”, Prior to the commencement of the 1956 Act, therefore, Rudra Pratap was entitled to get possession of the suit land from ihe defendant along with mesne profits, which must go to his sons and widows. The legal position would be the same even after this Act until the death’ of Rudra Pratap, because the Act, being expressly prospective in operation, does not affect existing rights, though it abolishes the custom of impartible estates. In other words, after the death of Rudra Pratap, the estate including the suit land would not go exclusively to his eldest son. Hence, the entire mesne profits of the suit land up to the date of death of Rudra Pratap would go to his sons and widows.
9. Subsequent to the death of Rudra Pratap, however, the estate became joint family property belonging to the defendant and the heirs of Rudra Pratap like the property of a joint Mitakshara family in the ordinary sense. There could not be any change in this legal position on account of the vesting of the Nagaruntari Estate in the State of Bihar under the Bihar Land Reforms Act. Of course, the suit land, which was bakasht of the proprietor, became his rayati land under Section 6 of this Act; but it remained a part of the impartible estate in the hands of Rudra Pratap, even after 4-11-51, the date of vesting. He could certainly alienate the suit land and appropriate its usufructs; but this could not make it his personal or exclusive property, as like the other properties of the impartible estate it formed a part of the property of the joint family of which the defendant was also a member, though the defendant had no “present right to possession” thereof. I am unable to agree with Mr. Sinha that a completely new title was created in Rudra Pratap in respect of the suit land after the date of vesting, because only its character was changed from bakasht to rayati. For the same reason, the suit land could not become the property of the eldest son of Rudra Pratap. Of course, this son had the vested right to get the impartible estate, including the suit land, by survivorship, so long as it continued to retain the character of impartibility: but after the death of Rudrs Pratap. it ceased to retain this character on account of the Act of 1956. The mere fact that Rudra Pratap was the recorded proprietor, when the zamindaris of the Nagaruntari Estate vested in the State of Bihar, could not make the land, which became rayati land under Sec-tion 6. the exclusive or personal property of Rudra Pratap, because he was holding the impartible estate as the representative of the joint family (subject, of course, to his unqualified right to alienate the same), though the rights of the other members ol the family had been eclipsed for the time being.
In other words, the character and incidents of the suit land were not altered by the creation of the statutory tenancy under Section 6 for the purpose of the claim of any member of the family whenever it might arise, provided that it was alienated by that time This view is supported in principle by the decision in Gurbachan Singh v. Puran Singh, (1962) I SCR 176 = (AIR 1961 SC 1263). In that case, one M executed a will bequeathing the property in dispute. A suit was brought for declaration, inter alia, that the will was ineffective and M had no power to bequeath the land in dispute as it was ancestral qua the defendants. The question for decision was whether the portion of land which had fallen to the share of M in consolidation proceedings in lieu of his share in land held by him was ancestral or not. It was held that where land had been consolidated and in lieu of ancestral lands and non-ancestral land a consolidated area was given to a proprietor, then such of the portion of the consolidated area which corresponds to the area of land which was ancestral, will be anceshal land The decisions in Thangavelu v. Court of Wards, Madras, AIR 1947 Mad 38 and Hargovind Sinsh v. Collector of Etah, AIR 1937 All 377 are, in my opinion, not of much help on this point. The possession regarding moveables. would, however. be different and the question whether the zamindari compensation money payable for the estate under the Land Reforms Act would he moveable property or not need not be decided in this case.
10. Mr. Sinha, however, contended that on the creation of the statutory tenancy under Section 6 of the Land Reforms Act. Rudra Pratap became the exclusive owner of the suit land, because the defendant, his nephew, was neither a co-proprietor of the estate, as contemplated by that Act, nor was he in khas possession of the suit land on 5-11-51, the date of vesting. He submitted that the ‘right to take the properties of the impartible estate by survivorship does not make a member of the joint family a co-proprietor; though potentiality of the defendant to become a coparcener was there, he was not an actual coparcener on 5-11-51. But out of the vested rights of the coparcener of a joint Hindu family, only the right of joint enjoyment, the right of maintenance and the right to call for possession, of the impartible property are, on account of the custom, incapable of existence, but the vested right of the undivided coparceners to survivorship remained from the nature of the property itself so that if the family were joint and the last holder died intestate, the estate would devolve by survivorship; and it has been held in 1964(2) SCR 403 at p. 416 = (AIR 1964 SC 118 at p. 124), that this right should not be confused with a mere spes successionis. because this right can be renounced or surrendered. Further. Rudra Pratap became the statutory tenant under Section 6 of the Act in his right as the holder of the estate for the time being; and, therefore, the statutory tenancy in respect of the suit land appertained to the impartible estate to which the defendant also had a right of survivorship. Of course, Rudra Pratap could have alienated the suit land like other properties of the estate; but he could not dispose of the same merely on account of the creation of the statutory tenancy or irrespective of his capacity as the holder of the impartible estate. It is also manifest that the creation of this tenancy was an accretion to the impartible estate like accretions to ordinary estates, except that it would still be subject to the rules relating to impartible estates.
11. I am conscious of the fact that Section 6 provides that the land in khas possession of the proprietor shall be deemed to have been settled, with effect from the date ol the vesting, with him and that, in Section 2(o), ‘proprietor’ is denned to mean a person holding in trust or owning for his own benefit an estate or part of an estate, and includes the heirs and successors-in-in-terest, of a proprietor …..” According to Section 2(i). ‘estate’ means “any land included under one entry in any of the general registers of revenue-paying lands and revenue-free lands, prepared and maintained under the law for the time being in force by the Collector of a district, and includes revenue-free land not entered in any register and a share in or of an estate”. In the instant case, Rudra Pratap being the holder of the impartible estate must have been recorded in the Collector’s register in respect of the estate to which the suit land appertained; and it is obvious that he was so recorded prior to the date of vesting as representative of the joint family. Hence, for the- purpose of this estate, the words ”owning for his own benefit” in the definition of ‘proprietor’ should mean “owning for the benefit of the joint family”, subject, of course, to the unfettered right of Rudra Pratap to alienate the property and to enjoy its usufruct. Mr. Balbhadra Prasad Singh further submitted that he was holding the estate in trust for the members of the joint family whose maintenance, consistent with the dignity of the family, was the duty of Rudra Pratap; and in fact the Khorposh grant means a grant for maintenance of the grantee. In other words, it was the fiduciary obligation of the owner for the time being of the impartible estate to the other members of the joint family with dignity. But as was held by the Privy Council in the case of Rama Rao. 45 Ind App 148 = (AIR 1918 PC 81). approved by the Supreme Court in 1964(2) SCR 403 at p. 416= (AIR 1964 SC 118 at p. 124). even the right of maintenance of the members of the joint family, as a matter of right, is not enforceable in the case of an impartible estate. A trust is an, obligation annexed to the ownership of pro-perty arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner — (see Section 3 of the Indian Trusts Act). In other words, in its technical legal sense, a trust is a right enforceable to the beneficial enjoyment of property, the legal title to which is vested in another person. It is manifest, therefore, that, in the instant case, there was no trust for the benefit of the members of the joint family of Rudra Pratap in respect of any property appertaining to the impartible estate.
But, as pointed out earlier, Rudra Pratap owned the estate on behalf of all the coparceners, including the defendant, of the joint family; and, therefore, on the date of vesting the defendant was in khas possession of the suit land through him constructively, even though he could not enforce his right of enjoyment or partition of the property at that time. If this view be correct, then the defendant can also be called a co-proprietor which interest of his remained in abeyance for the exercise of most of the rights of a proprietor so long as Rudra Pratap was alive. It, is evident from the foregoing discussions that the new character of the suit land (from bakasht to rayati) under Section 6 of the Land Reforms Act was created in favour of all the members of the undivided family, subject to certain exclusive rights of Rudra Pratap.
I am unable to agree with Mr. Lai Narayan Sinha that the statutory tenancy enured to the benefit of only Rudra Pratap on account of his exclusive right of enjoyment of the usufruct of the suit land and his unqualified right of alienation thereof, because the corpus would remain for the benefit of all the members of the joint family for the purpose of succession by survivorship unless it were alienated completely in the lifetime of Rudra Pratap. I am also unable to agree that his sons would have obstructed the defendant’s right of survivorship, because one could not have been sure whether the sons would survive the father or not. It is true that they survived their father in 1957, but by that time the rule of impartible estate itself had been abrogated and the sons could not obstruct the defendant’s right as a member of the undivided family. My conclusion, therefore, is that, the statutory tenancy in respect of the suit land was for the benefit of all those who would have interest in the suit land, as a part of the estate, after the death of Rudra Pratap; and the defendant, being one of them and a coparcener of the undivided Mitakshara family, would get his due share in the property. Hence, the contention of Mr. Sinha that only the sons and widows of Rudra Pratap would get the property must be rejected.
12. The last contention of Mr. Sinha was that, even assuming all the findings of the courts below to be correct, there should have been a decree for possession with mesne profits. The defendant admittedly got possession of the suit land under a document which has been now found to be void because of the provisions under Section 12 of the Chota Nagpur Encumbered Estates Act. Hence, from 14-4-52, the date of Khor-poshnama, the defendant remained in possession of the suit land as a trespasser. The plaintiff’s attempt to take back possession failed on account of the order under Section 145 of the Criminal Procedure Code dated 4-7-55. Thus, the assertion of hostile title by the defendant must be held to be adverse to Rudra Pratap up to the date of the lat-ter’s death. I am unable to agree with Mr, Singh that the defendant was a cosharer of the property even in Rudra Pratap’s life-Lime in the sense that his possession of the suit land should be treated as a co-owner’s possession, because Rudra Pratap could dispose of the property and appropriate all the usufruct thereof. For the same reason, Rudra Pratap would have been entitled exclusively to all mesne profits up to the date of his death and his sons and widows are entitled to the same after his death as his heirs.
13. The next contention of Mr. Sinha was that the defendant could not claim the suit land as a cosharer (that is, as a member of the undivided Hindu family), because from 14-4-52 he had been in possession of it adversely under a void document. Reli-ance was placed on the case of Bageshwari Charan Singh v. Jagarnath Kuari, AIR 1929 Pat 117; this decision was reversed on appeal in AIR 1932 PC 55, only on the question of acknowledgment under Section 19 of the Limitation Act. But this decision of the Patna High Court merely decides that the possession of the grantee could not be called permissive and it was adverse to the grantor’s successor-in-interest when the document of the grant is void, as in the instant case. It does not support Mr. Sinha’s contention that the defendant could not in any circumstance make a claim as a co-sharer once he had come in as a trespasser. Neither the English case of President and Governor of the Magdalan Hospital v. Alfred Knotts (1879) 4 AC 324, nor the Supreme Court decision in Collector of Bombay v. Municipal Corporation, of the City, AIR 1951 SC 469 is of any assistance. as both these cases merely decide that possession under a void document is adverse.
The case of Varada Filial v. Jeevarathn-ammal, ILR 43 Mad 244= (AIR 1919 PC 44) also does not help Mr. Sinha. The suit from which this appeal arose was brought to establish the title of the applicants to a moiety of a mitta or estate, consisting of two villages which belonged at one time to the ancestor of the parties, and eventually became vested in G and P, his two younger sons. On the death of G in 1879 his share vested in his widow R and he left also a daughter D. P died in 1867 leaving a will which the High Court held gave an absolute interest in the moiety to his widow A and their Lordships of the Judicial Committee upheld that construction. On 10th October, 1895, R and A who were then the registered owners of the two moieties of the mitta, presented to the Collector a petition, which after reciting that they had on 8th October given the two villages of which the mitta consisted to D, prayed that an order be made transferring the villages into her name. On the same date (10th October) D presented similar petition to the Collector reciting the gift of the villages to her, and asked for the transfer of them to her on the register, and the Collector thereupon, on 8th May 1896 registered the two villages (being the whole mitta) in the name of D, “to hold and enjoy them with power to alienate them by way of gift, mortgage, sale, etc.”, and from that date D retained possession until her death in 1911, after which the mitta descended to the respondent as her successor. It was held that the gift was invalid as not being made by a registered deed as required by Section 123 of the Transfer of Property Act (IV of 1882); that the recitals in the petitions could not be used as evidence of a gift, but might be referred to as explaining the nature and character of the possession thenceforth held by D; and that the evidence proved that she in fact took possession of the mitta in her own right when it was transferred into her name, and retained such possession with receipt of the rents until her death, when the plaintiff’s’ claim was barred by more than twelve years’ adverse possession.
The plaintiffs had put forward a contention that 9n the death of R in 1901 D became entitled either under her will or by succession to her moiety of the mitta, and accordingly that as from that date possession of the villages must be deemed to have been held by her as part owner, and not adversely. But their Lordships of the Privy Council said; “In the present case, it is plain that during the life of R the possession of D was adverse as against both co-owners; and this being so, there is no reason for holding that when on the death of R she became legally entitled to a moiety of the property. the character of her possession of the other moiety as against A was changed. There having been an ouster of A before the death of R, this ouster continued after her death, and the possession of D was adverse to A throughout. This contention therefore also fails”. It will be noticed, however that D nr the respondent who had succeeded her as her only child had never set up any title other than the one under the invalid gift, even though she had become entitled to the moiety of her mother R. either under her will or by succession. It is well settled that, if a man obtains possession of land claiming under a deed, he cannot afterwards set up another title to the land against the deed, that is, an interest different from that which he could have taken in case the property had validly passed by the deed.
But in the instant case, the position i. extraordinary At no time did the defendant claim to have been in adverse possession of the suit land; but on account of the fact that his khorporshnama was a void document, he was held to have been in possession as a trespasser at the time of the institution of the present suit. Subsequent events, namely, the change in the law and the death of the original plaintiff changed the entire position, After those events the defendant was entitled to and he did claim to been possession of the suit land as an undivided member of the family. In other words, he claimed to be a co-sharer of the estate (including the suit land.) which had ceased to be governed by the rule of impartible estates; and, in my opinion, there is no bar in law to such a claim simply because he had been found by the courts, on the basis of the position prior to the happening of subsequent events to have been a trespasser in possession for less than twelve years. Hence, the claim of the defendant to the suit land as a co-sharer of the estate is well founded.
14. The last contention of Mr. Sinha that the plaintiffs are entitled to a decree for joint possession of the suit land and a decree for mesne profits of their share for the period subsequent to the death of the original plaintiff is, however, well founded. On this point, Mr. Sinha relied on two decisions. In Raj Ranian Prasad Sinha v. Khobhari Lal, AIR 1941 Pat 90, after discussing certain decisions of the Privy Council it was held by a bench of this Court that a co-sharer who is in separate possession of the common land (irrespective of what his share would be upon partition) to the exclusion of, or in spite of it, objection from the other co-sharers is under an obligation to account or to pay compensation to them in respect of the profits earned by him by his own industry and that interest is payable on such compensation as in the case of mesne profits strictly so called.
In Jagdishwari v. Chandrika Kuer, AIR 1957 Pat 192, a co-sharer landlord sued two co-sharer landlords of the same tauzi for a declaration of title with regard to a ghair-mazrua malik plot of land and also for the partition of the plaintiff’s share on the ground that the plaintiff was not a party to the settlement of the land set up by defendants 1 and 2, who were in possession of the same. The other co-sharers were pro forma defendants. Defendants 1 and 2 claimed to be rayats on the basis of settlement from all the landlords, including the plaintiff, and pleaded ouster of the plaintiff. The trial court accepted the case of the plaintiff and granted a decree to the effect that “the plaintiff will recover possession after partition and dakhaldehani”. This decree was affirmed by a Subordinate Judge, and in second appeal by a learned Single Judge of this court. In Letters Patent Appeal, a bench of this court distinguished the decision of the Privy Council in Midnapur Zamindari Co Ltd. v. Kumar Naresh Nara-yan Roy. AIR 1924 PC 144, and said that the principles laid down therein had no application to the facts of the case, inasmuch as this suit wes brought by the plaintiffs against defendants 1 and 2 not in the character of co-sharer landlords but in tha character of alleged lessees of the disputed plot; and, therefore, the plaintiff was held to be entitled to a decree for ejectment but it would be a decree for joint possession in favour ot the plaintiff and other co-sharer landlords as against defendants 1 and 2. It was further held that the plaintiff could not be granted a decree for partition of the deputed plot only and the plaintiffs remedy was to bring a suit for partition of the entire tauzi.
15. Mr. Singh distinguished these two decisions on the ground that they were cases of ouster and he relied on some other decisions. In Ramchandra Saha v. Lakshmi Kanta, 47 Cal LJ 603 :(AIR 1928 Cal 574) a bench of the Calcutta High Court posed the question whether in the circumstances of the case there had been such an ouster as to entitle them (some co-sharer landlords) to ask for a decree for joint possession of the suit land of which defendant No. 1 (also a co-sharer landlord) was alone in possession after having purchased the same from the rayat:. It was held that there was no case of ouster and the position was “somewhat analogous to the case of a tenancy in common where each tenant is allowed, for purposes of mutual convenience, to remain solely and severally seized of certain plots within the ambit of the joint property and where his co-tenants are not in control or possession of the said plots.” As summarised in the placitum, it was held: “A co-sharer is not entitled to a decree for joint khas possession with another who is in sole occupation of a holding, his possession not being hostile and not inconsistent with joint ownership. Ouster means dispossession of one co-sharer by another where a hostile title is set up by the latter and where the occupation of the latter is not consistent with joint ownership.” The distinction between such a case and a case of ouster has been clearly pointed out by Sulaiman, C. J. who spoke on behalf of a bench of the Allahabad High Court in ILR 55 All 728 : (AIR 1933 All 519) Muhammad Abdul Jalil Khan v. Muhammad Abdul Salam Khari. The placitum which correctly summarises the decision reads: “A co-owner who is ousted and excluded from the enjoyment of his share in the property held by him and others as tenants-in-common is entitled to maintain a suit for compensation for use and occupation of his share from which he has been excluded by other co-owners. Where different co-sharers have, without force or fraud, been in peaceful and exclusive possession of different portions of joint properties for a time sufficient to raise the inference that their separate possessions originated in some mutual understanding, that arrangement cannot be disturbed either by a suit for joint possession or one for compensation for use and occupation; in such a case the only remedy left would be a suit for partition.”
This distinction has also been pointed out in the decisions of the Patna High Court (see AIR 1941 Pal 90). approving earlier decisions of Single Judge in Shiv Narain v. Chandra Sekhar, AIR 1933 Pat 616: and Mt. Shyam Sunder Koer v. Shed Charan Kuer, AIR 1937 Pat 235. In the case of Raj Ranjan Prasad, a bench of this court discussed the Privy Council decisions in Watson and Co. v. Ramchund Dutt, (1891) ILR 18 Cal 10 (PC), Lachmeswar Singh v. Manowar Hossein, (1892) ILR 19 Cal 253 (PC), and 29 Cal WN 34 : 51 Ind App 293 :(AIR 1924 PC 144) and approved the interpretation made by the Calcutta High Court in Chandra Kishore v. Biseswar Pal, ILR 55 Cal 396 : (AIR 1928 Cal 216) of the Privy Council decisions. The correct legal position, therefore, is that where one co-sharer is in separate possession of the common land (whether or not the portion of the land which he is occupying is in excess of the area that would fall to him upon partition) without objection from, or ouster or exclusion of, the other co-sharers, he is under no obligation either to account or to pay compensation to such co-sharers in respect of the profits which have accrued to him by reason of the skill or industry which he has employed in making good use of the property while he was in possession. On the other hand, if a co-sharer, notwithstanding an objection from the other co-sharers, claims an exclusive right to occupy a portion of the land of which they have a common right of possession, or excludes or ousts from possession the other co-sharers, he will have to pay compensation to the other cosharers for any profits that they may be held to have lost by reason of his exclusive occupation of the common land.
16. From the facts of the instant case, it is evident that the proposition applicabh to a case of ouster by one co-sharer of another will apply, Defendant respondent No. 1 (son of the deceased brother of Rudra Pratap Deo) was a trespasser on the suit land from the day he came into possession of the same, because the Khorposh grant was void ab initio; and even thereafter he claimed exclusive possession of the same in the dispute resulting in the proceeding under Section 145 of the Criminal Procedure Code which was decided in his favour. Of course, after the death of Rudra Pratap, he became a co-sharer with Rudra Pratap’s sons and widow; but he always excluded Rudra Pratap and his heirs from the possession of the suit land Hence, it was a clear case of ouster and the second proposition of law enunciated in the preceding paragraph will apply to this case. Consequently. the heirs of Rudra Pratap are entitled to get a decree for possession of the suit land jointly with the sole defendant-respondent No. 1 as also fot mesne profits for their share, that is, one-half in addition to the entire mesne profits to which Rudra Praiap was entitled in his life-time.
17. In the result, the sons and widows of Rudra Pratap (that is. the appellant and the respondents other than respondent No. 1) shall get a decree for possession of the suit land, in respect of their one-half share, jointly with respondent No. 1 (the original defendant) along with all the mesne profits of the suit up to 7-9-1967, when Rudra Pratap, the original plaintiff died, as also one-half of the mesne profits hereafter. The suit is decreed and the appeal is allowed accordingly in part: but, in the circumstances of the case, the parties will bear their own costs.
Anwar Ahmad, J.
18. I agree.