JUDGMENT
S.J. Hyder, J.
1. These are two connected appeals which arise out of a common judgment. The suits giving rise to these appeals were tried as analogous by the trial court and the evidence led in one of the suits has been read as an evidence in the other suit also. We, therefore, proceed to decide these appeals by means of this judgment.
2. In order to appreciate the facts of the case, the following pedigree is sub-joined :–
Kumar Ajambar Singh Deo
|
————————————————————-
| | | | |
Raja Bahadur Kumar Jagannath Pitambar Padamanava Rammohan
chakradhar Singh Deo Singh Deo Singh Deo Singh Deo
Singh Deo |
| Jitnarayan
Maharaja Udit Singh Deo
Narayan Singh |
| --------------------------------------------
Tikait Nruparaj | | | |
Singh Deo Raghuraj Dwijaraj Suraraj Gandharbraj
| Singh Deo Singh Deo Singh Deo Singh Deo
Raja Aditya | | |
Pratap | Narayan Pratap Hemanta Kumar
Singh Deo | Singh Deo Singh Deo(Plff.
| in Title Suit No.
| 19 of 1964 & Deft.
| in Title Suit No. 21
| of 1964).
|
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| |
Amrendra Pratap Singh Deo (His Gobinda Pratap Singh Deo (Deft.
widow is Deft.1(c) in Title Suit No. 19 no.1(d) in Title Suit No. 19 of 1964
of 1964). | & Plaintiff No. 2 in Title Suit No.21 | of 1964).
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| | |
Rameshwar Singh Jogeshwar Singh Ratneshwar Singh
Deo (Deft No. 1 in (Deft. No. 1(a) in Deo (Deft. No.
Title Suit No,19 of Title Suit No. 19 1(b) in Title Suit No.
1964). of 1964 & Plaintiff 19 of 1964 & plaintiff No.
No. 1 in Title Suit 2 in Tilte Suit No.21 of
No. 21 of 1964. 1964.
3. There is no dispute between the parties with regard to the correctness of the above pedigree. Kumar Ajambar Singh Deo had originally five sons. Three of the sons, namely, Pitambar Singh Deo, Padmanava Singh Deo and Ram Mohan Singh Deo died issueless and they need not detain us any further. Raja Bahadur Chakradhar Singh Deo, another son of Kumar Ajambar Singh Deo and his descendants, are the former rulers of the erstwhile State of Seraikella, now merged in the State of Bihar, as part of the district of Singhbhum. It may be stated that Raja Bahadur Chakradhar Singh Deo was the eldest son of Kumar Ajambar Singh Deo. The parties to this case are the descendants of the second son of Kumar Ajambar Singh Deo viz. Kumar Jagannath Singh Deo, Kumar Jagannath Singh Deo had a son, Jit Narayan Singh Deo, who in his turn had four sons, namely, Raghuraj Singh Deo, Dwljraj Singh Deo, Suraraj Singh Deo and Gandharbraj Singh Deo. Raghuraj Singh Deo died issueless. I shall have some thing more to say about it later in this judgment. Suraraj Singh Deo had a son, namely, Narayan Pratap Singh Deo who died sometime in the year 1945. Gandharb Raj Singh Deo’s-son, Hemanta Kumar Singh Deo is the plaintiff in Title Suit No. 19 of 1964 and defendant No. 1 in the connected Title Suit No. 21 of 1964. Dwijaraj Singh Deo’s first son, Amrendra Pratap Singh Deo was the original defendant in Title suit No. 19 of 1964. He died during the pendency of the suit and his son, Rameshwar Singh Deo was impleaded as defendant No. 1 in his place and the two other sons of the deceased, namely, Jogeshwar Singh Deo and Ratneshwar Singh Deo were respectively impleaded as defendant Nos. 1(a) and l(b) in Title suit No. 19 of 1964. The widow of Amendra Pratap Singh Deo was impleaded as defendant No. 1(c) in the said suit. The brother of Amrendra Pratap Singh Deo, viz, Gobinda Pratap Singh Deo was made a party as defendant No. 1(d).
4. The British Government granted village Bhalu Pani in lakhraj rights to Jagannath Singh Deo. At the time of the grant the aforesaid village was part and parcel of Bengal but the administrative right over the same was handed over to the former State of Seraikella, subsequent to the grant made in favour of Raghuraj Singh Deo. Some other villages and some Nij jote lands in different villages were granted to Jagannath Singh Deo for his
maintenance and the maintenance of his brothers by the former State of Seraikella. Raghuraj Singh Deo, the eldest of the grandsons of Jagannath Singh Deo died sometime in the year 1929 without leaving any issue. Thereafter the State of Seraikella resumed the grant made in favour of Jagannath Singh Deo including village Bhuiyan Nachna. Thereupon, Dwijraj Singh Deo, Narayan Pratap Singh Deo and Gandharb Raj Singh Deo preferred a memorial to the Viceroy of India who rejected it, with one exception. With respect to village Bhuiyan Nachna, it was held that it was a Khorposh grant made by the former State of Seraikella and the Darbar had no right to resume the said village. On September 18, 1936, the then Raja of Seraikella granted a fresh Sanad in the nature of Khorposh grant in the name of Dwljraj Singh Deo In respect of some villages and Nij Jote lands, There Is no controversy between the parties with regard to the facts stated above.
5. Hemanta Kumar Singh Deo, son of Gandharb Raj Singh Deo commenced Title Suit No. 19 of 1964 for a decree for partition by metes and bounds of the plaintiffs’ one-half share in Nij jote lands. He further claimed a declaration that the plaintiff was entitled to one-half share in the compensation money payable under the Bihar Land Reforms Act, 1950 (hereinafter referred to as ‘the Act’) for the acquisition of the property comprised in the villages which had been granted by the Darbar of the former State of Seraikella as Khorposh grant ostensibly in the name of Dwijraj Singh Deo and other incidental reliefs. According to the plaintiff, the junior branch of the Seraikella State was joint Hindu family and the Khotposh grant made by the Darbar of the former State of Seraikella in the name of Dwijraj Singh Deo was in his representative capacity as he was the eldest member of the said family. It was stated that Amrendra Pratap Singh Deo was well conversant with the court’s work and was doing the said work on behalf of the family. Gandhrab Raj Singh Deo, father of the plaintiff, Hemanta Kumar Singh Deo had implicit faith in Amrendra Pratap Singh Deo and he gave certain papers to Amrendra Pratap Singh Deo but Amrendra Pratap Singh Deo misusing the confidence had obtained orders in his favour from the Land Reforms Deputy Collector. According to the plaintiff, villages Bhalu Pani and Bhuiya Nachna were
also joint Hindu family properties. There were certain other allegations made in the plaint with which I shall deal subsequently in the judgment.
6. The suit was resisted by the defendants, inter alia, on the ground that the khorposh grant made by the Darbar of the erstwhile State of Seraikella was governed according to custom. It was impartible and descendable by the rule of primogeniture. It was also stated that the Sanad issued by the Darbar was only in favour of Dwijraj Singh Deo. They contended that the suit of the plaintiffs was liable to be thrown out. Certain other averments were made in the written statement which shall be dealt with later.
7. Survey proceedings having started to the Nij Jote lands were recorded in the name of Amrendra Pratap Singh Deo, Gobind Pratap Singh Deo and Gandharb Raj Singh Deo, The share of Amrendra Pratap Singh Deo and Gobind Pratap Singh Deo was shown in the Khatian as one-half and the name of Gandharb Raj Singh Deo was shown as owner of the remaining moiety share. Amrendra Pratap Singh Deo filed an objection against the entry under Section 87 of the Chota Nagpur Tenancy Act stating that the custom of primogeniture prevailed in the family and his name alone should have been recorded in the revenue papers. He objected to the entry of the names of his younger brothers, Gobind Pratap Singh Deo and Gandharb Raj Singh Deo. The claim was registered as suit No. 6 of 1961-62. It was subsequently transferred to the Civil Courts. Gandharb Raj Singh Deo and Gobinda Pratap Singh Deo were defendants in the suit. On the death of Amrendra Pratap Singh Deo, his heirs were impleaded as party to the suit. The suit was numbered as 21 of 1964 in the court of the Subordinate Judge, Chaibasa, which was tried along with Title Suit No. 19 of 1964. Needless to say that the suit was resisted by the defendants on the ground that the custom of primogeniture was not prevalent in the family and the estate was not impartible.
8. Title Suit No. 19 of 1964 was decreed by the trial Court and Suit No. 21 of 1964 was dismissed by it. In consequence the sons of Amrendra Pratap Singh Deo have preferred these two connected first appeals. The sons of Amrendra Pratap Singh Deo will be hereinafter, be referred to as the defendant-appellants. Hemanta Pratap Singh Dep’s soil,
Gandharb Pratap Singh Deo shall be called as plaintiff-respondent.
9. The controversy between the parties in these two appeals is as to whether the grant made by the State of Seraikella in favour of Dwijraj Singh Deo was impartible and was governed by the rule of primogeniture. The Trial Court, namely, the Court of Subordinate Judge at Chaibasa, has answered the question in negative. The correctness of the findings recorded by the trial Court have been assailed by the sons of Amendra Pratap Singh Deo.
10. Before proceeding further with the main controversy between the parties, a submission made on behalf of the plaintiff-respondent in First Appeal No. 351 of 1967 may be noticed. Learned counsel for the plaintiff-respondent in the said appeal, relied on Section 4 of the Hindu Succession Act, 1956 and submitted that the custom of succession by lineal primogeniture being Inconsistent with the provisions of the Hindu Succession Act, effect cannot be given to the same. Section 4 of the Hindu Succession Act in so far as it is relevant, is quoted below :–
“4.(1) Save as otherwise expressly provided in this Act.
(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.
(b) xx xx xx xx”
In my opinion, this submission urged is
misconceived. The grant by the State of
Seraikella was made in favour of Dwijraj Singh
Deo who died in the year 1948. Immediately
on the death of Dwijraj Singh Deo, the estate
if governed by the rule of primogeniture would
descend on the eldest son of the deceased,
namely, Amrendra Pratap Singh Deo. The
Hindu succession Act came into force on June
17, 1956. It is fundamental rule firmly
established in the realm of jurisprudence that
a law dealing with substantive rights shall not
be construed to have retrospective operation,
unless such construction appears very clear
from the terms of the Act or arises by necessary
implication. Section 4 of the Hindu Succession
Act is prospective in effect and does not have the exceptional consequence of divesting Amrendra Pratap Singh Deo of the estate which may have devolved upon him by the
alleged custom of primogeniture. The
argument has only to be stated before being rejected. For the reasons stated above, I do not think it necessary in support of his submission. In all the cases relied upon by him, succession opened after coming into force of the Hindu Succession Act, 1956 and they are, therefore, distinguishable.
11. With the above observation, I revert to the Central Question which requires determination in these first appeals and which I have already stated above. It is admitted on all hands that in the revenue-papers, the villages comprised in the khorposh grant and Nij jote lands were recorded in the revenue papers from 1925 onwards in the names of all the brothers of Raghuraj Singh Deo. True it is that the Sanad granted by the then Ruler of Seraikalla State in favour of Jagannath Singh Deo is not on (he records. The entry of the names of the brothers of Raghuraj Singh Deo is nevertheless a circumstance which militates against the case of defendant-appellants.
12. Reliance has been placed by the learned counsel appearing on behalf of the defendant-appellants on Ext. 4, on the Memorial submitted by Dwijraj Singh Deo, Gandharb Raj Singh Deo and Narendra Pratap Singh Deo against the resumption of the estate granted to Kumar Jagannath Singh Deo by the then Ruler of Seraikella State. His emphasis was on paragraph 4 of the Memorial and he submitted that it contains unequivocal admission on the part of Gandharb Raj Singh Deo stating that the family was governed by a rule of primogeniture. He contended that it was no longer open to plaintiff-respondent to go against the admission made by his ancestor. In my opinion, the argument is misconceived and it cannot be accepted.
13. Before dealing with the submission of the learned counsel, a preliminary observation may be made. When the quondam Ruler of the erstwhile State of Seraikella proceeded to resume the estate granted to Jagannath Singh Deo, he issued notices to Dwijraj Singh Deo, Gandharb Raj Singh Deo and Narain Pratap Singh Deo and made an order of resumption after hearing them. The very fact that the notices were issued to all the heirs of Raghuraj Singh Deo who had admittedly died issueless goes to show that the Sanad under which the property was held was not governed by the rule of lineal primogeniture. In case the Sanad granted to Jagannath Singh Deo had been
governed by the custom of primogeniture and the estate was impartible, notices would only have been issued to Dwijraj Singh Deo. Further Memorial to the Viceroy against the order of resumption should have been presented only by Dwijraj Singh Deo. Gandharb Raj Singh Deo and Narain Pratap Singh Deo should not have joined in the Memorial. The facts stated above indicate that there was no custom in the family according to which the Sanad made in the name of Jagannath Singh Deo was descendable by the rule of primogeniture.
14. Much stress has been laid on the statement contained in paragraph 4 of the Memorial. I have gone through the Memorial and the annexures attached to it. In my opinion, the statement made in paragraph 4 of the Memorial relates only to the custom prevalent in the family relating to the succession of Gaddi of the erestwhile State of Seraikella. In the said paragraph of the Memorial, it is stated, that according to the family custom the eldest member succeeds to the Gaddi of the State and the junior members of the family are entitled only to the maintenance grants. Reading the Memorial as a whole, it is evident that what was stressed before the then Viceroy of India by the memorialists was that the grant made in favour of Jagannath Singh Deo having survived for more than three generations, the same was not liable to be resumed by the Darbar of the State of Seraikella. It is clear from the averments made in the Memorial that the property comprised in the grant made to Jagannath Singh Deo was referred to by the memorialist as belonging to the joint Hindu family in which all the members of the family had an interest. This submission made on behalf of the defendant-appellant cannot, thus, be sustained.
15. As to what is the meaning of impartible property, the law is firmly settled. It is now well recognised that the property although partible by nature may be custom or by terms of the grant made by a Government be impartible in the sense that it always devolves on the senior member of a family to the exclusion of other members. The existence of custom at variance with the ordinary law of inheritance has to be established by the party who relies on the existence of such custom. It is also not in doubt that the custom pleaded must be ancient and invariable and should be established by clear and unambiguous
evidence. It is equally well settled that there ” cannot be a disposition of property inter vivos which brings into existence a law of inheritance which is at variance with the law relating to succession. However, the Sovereign may make a grant in favour of a subject which militates against the law of inheritance. In other words, the subject is not authorised to transfer property making it governable by a rule of succession at variance with the personal law of the transferee. Such right has been given to the Sovereign only. The defendant-appellants have relied both on custom governing the family and also on the terms of the grant made by the then Ruler of erstwhile State of Seraikella in the name of Dwijraj Singh Deo in the year 1936. It shall be my endeavour to find out if any of the two cases pleaded by defendant-appellants has been established or not.
16. I have already given some of the reasons which derogates from the existence of custom prevalent in the family pleaded by defendant-appellants. No other document except Ext. 4 has been brought to our notice in support of the custom relied upon by defendant-appellants. Out of defendant-appellants only Jageshwar Singh Deo, defendant No. 1 (a) has entered the witness box. In his cross-examination he has specifically admitted that there is no document to show that the law of lineal primogeniture was prevalent in the family except the decision in Nirmal Singh Deo’s case. A copy of the said decision is Ext. J on the record. It is an order passed by the Sub-divisional Officer, Seraikella, in Misc. Case Nos. 127 and 183 of 1956-57 whereas the suit giving rise to First Appeal No. 351 of 1967 was instituted in the year 1964. The said document is wholly insufficient to establish the existence of custom as alleged by the defendant-appellants.
17. In the absence of any other documentary evidence, I have to find out as to how far the defendant-appellants have succeeded in proving the existence of the alleged custom by means of oral evidence. The defendant-appellants have produced as many as 15 witnesses in support of their case. Lal Bihari Patnaik is D.W.2. In his cross-examination he had pleaded complete ignorance about the affairs of the family. He has, however, admitted that the descendants of Dwijraj Singh Deo and Gandharb Raj Singh Deo are in separate cultivatory possession of
the lands in dispute, namely, Nij jote lands. D.W.3 is Ishwar Pradhan. In his examination-in-chiet’, he has staled that his father was the Thekedar of village Bhalu Pani and he used to collect rent from the tenants and pay the same to Amrendra Pratap Singh Deo. In his cross-examination he conceded that Amrendra Pratap Singh Deo used to make such collection from the lifetime of Dwijraj Singh Deo. This admission supports the contention of the plaintiff-respondents that Amrendra Pratap Singh Deo used to look after the affairs of the family. D.W.4 is Balram Singh. He stated that he was the priest of Amrendra Pratap Singh Deo from the age of 17 years. In his examination-in-chief, he said that all the brothers used to have joint cultivation of the lands. He further stated that Amrendra Pratap
Singh Deo used to give expenses of eduction to Hemanta Kumar Singh Deo, plaintiff-respondent. D.W.5 is Chanshyam Raut. He is resident of village Bhalu Pani. True it is that he stated in his examination-in-chief that Dwijraj Singh Deo was Zamindar of village Bhalu Pani and after his death, Amrendra Pratap Singh Deo became its Zamindar. In his cross-examination, he conceded that he had not seen Raghuraj Singh Deo and Dwijraj Singh Deo. According to him, Amrendra Pratap Singh Deo alone used to gram lease under his own signature on stamp papers of village Bhalu Pani. The testimony of this witness does not inspire confidence in asmuch as he admitted in his cross-examination that a patta was granted in his favour by Dwijraj Singh Deo 23-24 years ago. His statement was recorded on May, 3, 1967. Be that as it may, the fact of Dwijraj Singh Deo realising rent from the tenants by granting patta is not in any way inconsistent with the family being joint. He does not state a word about the existence of custom in the family, according to which, a properly is descended by the rule of primogeniture. Similarly, Patan Manjhi (D.W.6) does not state anything about the existence of custom in the family according lo which the property held by the agnates of the State of Seraikella was impartible and was governed by the rule of primogeniture. Same observation applies to the testimony of Balbhadra Pradhan (D.W.7). D.W.8 is Kedarnath Rath. He also does not say anything about the existence of the custom relied upon by defendant-appellants. All that he states is that there were records available in the Collectorate of Seraikella which went to prove
that the rule of primogeniture was applied to the estate of maintenance holders of the State of Seraikella. He further stated that notices of the resumption proceeding were issued on the death of Raghuraj Singh Deo against the two brothers and the nephew of the deceased. The testimony of this witness does not advance the case of the defendant-appellants. D.W.9 is Narendra Nath Sarangi. In his examination-in-Chief, he admitted that Nij Jote lands were being cultivated by Gobinda Pratap Singh Deo and his sons. The testimony of this witness militates against the theory of succession by lineal primogeniture propounded by the defendant-appellants. D.W.10 is Sanatan Singh Sardar. He states that Nij Jote lands in village Bundu were owned jointly by Amrendra Pratap Singh Deo and his younger brother, Gobinda Pratap Singh Deo who carried their cultivation jointly. He admitted that Hemanta Kumar Singh Deo, plaintiff-respondent No. 1 also went there to look after the lands. D.W. 11 is Kandan Manjhi. He does not speak about the existence of custom in the family. His evidence is, therefore, rejected. The testimony at D.W.13 Ujjal Jhatheri and D.W.14, Abhay Charan Das also do not state any thing about the existence of custom in the family.
As already stated above, D.W.15 is defendant No. 1(a) in original suit No. 19 of 1964. He is only aged about 30 years. No doubt he states in his examination-in-chief that his family was not governed by the Mitakshara School of Hindu Law but according to the rule of lineal primogeniture The age of this witness makes him incompetent to speak about the existence of custom which must be ancient. He conceded that the entries in the khewat and Khatian were in the joint names of all the members of the family. He went to the extent of saying that even village Bhuiya Nachna was a part of the Khorposh grant. He stated that Gandharb Raj Singh Deo lived with Dwijraj Singh Deo until his lifetime and he took up separate residence after Dwijraj Singh Deo’s death. The testimony of this witness is wholly insufficient to make out the custom relied upon by the defendant-appellants. The remaining witnesses examined on behalf of the defendant-appellants are formal and it is not necessary to refer to their evidence. From a resume of the entire evidence produced on behalf of the defendant-appellants, oral as well as documentary, it is clear that it is wholly inadequate to prove the existence of a custom of an impartible estate in the family of
Jagannath Singh Deo. The Trial court was right in recording a finding against the defendant-appellants on this aspect of the case. I, therefore, affirm the finding of the Trial Court on this point.
18. The Sanad granted to Kumar Jagannath Singh Deo is not on record. It is, therefore, not possible to construe the provisions of that Sanad. Anyhow, the grant made in favour of Kumar Jagannath Singh Deo was resumed by the Darbar of Seraikella after the death of Raghuraj Singh Deo. The order of resumption passed by the Darbar was affirmed by the Crown Representative with the exception of village Bhuiya Nachna. Learned counsel for the defendant-appellants relies on Ext. B which is a fresh grant made by the Darbar in the year 1936, it has been strongly urged before us by the learned counsel that the said grant was only in the name of Dwijraj Singh Deo and was for khorposh purposes. He submitted before us that from the terms of the said grant, it is evident that it was only in the name of Dwijraj Singh Deo and the estate, thus, granted for khorposh purposes would descend on his heirs only and the Gandharb Raj Singh Deo and his heirs would have no interest in the subject matter of the said grant.
19. Earlier in this judgment I have already stated that it is possible for a Sovereign to make a grant which derogates from the law of succession governing the grantee. This Raj of Seraikella was undoubtedly possessed of all the insignia of a Sovereign. It was no doubt, possible for the Ruler to take a grant which could belong exclusively to Dwijraj Singh Deo and would consequently descend on the eldest among his heirs.
20. I have gone through the said grant. I am unable to accept the submission of the learned counsel for the defendant-appellants that the grant was only in the name of Dwijraj Singh Deo in his individual capacity. As already outlined above, the grant made by the then Raja of Seraikella was made after resumption of the estate which had been originally granted by the Ruler of Seraikella to Kumar Jagannath Singh Deo and had been resumed by the State j
of Seraikella after the death of Raghuraj Singh Deo, one of the grandson of Kumar Jagannath Singh Deo. The grant was made for the purpose of maintenance to co-nominee grantee as well as his dependents, Gandharb Raj Singh Deo
and Narayan Singh Deo and their heirs. This
object of the grant is specifically stated in the Sanad (Ext. B). In view of the words used in the Sanad it is not possible to construe that it had been made only in favour of Dwijraj Singh Deo. As already stated, Dwijraj Singh Singh Deo was the eldest surviving brother after the death of Raghuraj Singh Deo.
21. Learned counsel has placed strong reliance on the decision of the Privy Council in Shiba Prasad Singh v. Prayag Kumari Debi, AIR 1932 PC 216. Learned counsel has relied on the following passage in the said case (at p. 222) : —
Impartibility is essentially a creature of custom. In the case of ordinary joint family property, the members of the family have; (1) the right of partition : (2) the right to restrain alienation 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 Satraj Kuaris case (1888 ILR 10 All 272) and Rama Krishna v. Venkata Kumara (1889 ILR 22 Mad 383) and so also the third as held in Gangadhara v. Rajah of Pittapur, (AIR 1918 PC 81). To this extent, the general law of the Mitakshara has been superseded by custom and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right, therefore still remains, and this is what was held in Baijnath’s case, (AIR 1921 PC 62). 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 succession is similar to that of a reversioner succeeding on the death of a Hindu widow to her husband’s estate. It is a right which is capable of being renounced and surrendered. Such being their Lordships’ view, it follows that in order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of
the family to renounce their right of succession to the estate. It is not sufficient to show a separation merely in food and worship. Admittedly there is no evidence in this case of any such intention. The plaintiffs, therefore, have failed to prove separation, and the defendant is entitled to succeed to the impartible estate. Being entitled to the estate, he is also entitled to the improvements on the estate, being the immovable properties specified in items 9 to of 19 Sch. ‘Kha’. These improvements, in fact, form part of the impartible estate.”
He has also relied on the Supreme Court’s
decisions reported in Pushpavathi Vijayaram
Gajapathi Raj v. Sripushavathi Viswaswar
Gajapathiraj, AIR 1964 SC 118,
Thyagasundaradoss Thewar v. Sevuga Pandia
Thewar, AIR 1965 SC 1730 and Dayaram v.
Dawalatshah, AIR 1971 SC 681. In the
decisions of the Supreme Court, the dictum
laid down by the Privy Council in Shiba Prasad
Smgh’s case (supra) quoted above, has been
approved.
22. 1 am unable to understand how the decisions of the Privy Council in Shiba Prasad Singh’s case (AIR 1932 PC 216) (supra) supports the submissions urged on behalf of the defendant-appellants. The passage from Shiba Prasad Singh’s case (supra) extracted: by me presupposes that even an impartible estate can be owned and possessed by a joint Hindu family. In the case of Shiba Prasad Singh’s case (supra), the Privy Council has approved its earlier decision in Baijnath Prasad Singh v. Tej Ball Singh, AIR 1921 PC 62 in which it has been held that a joint impartible estate in the sense stated above, can be owned and possessed by a joint Hindu family and the members of the junior branch of the joint Hindu family can be said to forego their rights of succession to the estate only if an intention on their part to separate from the family can either be expressed or implied. In the instant case, no such intention either express or implied on the part of Gandharb Raj Singh Deo is either alleged or proved.
23. Learned counsel, however, strongly relies on the following passage contained in the Sanad (Ext. B) for the submission that it was made only in favour of Dwijraj Singh Deo. The passage runs as hereunder;
“Your enjoyment of the khorposh tenure (Khorposh) shall be subject to your attendance
on us here in the State as well as outside in the social and other functions befitting to your status and position.”
It was contended on behalf of the defendant-appellants that the above injunction contained in the Sanad (Ext. B) discloses that only Dwijraj Singh Deo was required to attend the Darbar and, as such, the grant should be construed only in his favour. I am not inclined to accept this submission. The injunction, as quoted above, in the Sanad is to all the maintenance holders and each of the beneficiaries is required to attend the Darbar according to his means and status. At any rate, the Sanad of 1936 cannot be taken to be in favour of Dwijraj Singh Deo on the basis of the aforesaid injunction contained in the Sanad. Even if Dwijraj Singh Deo was required to attend the Darbar and to assist it, the expenses incurred by Dwijraj Singh Deo in that case without (sic) were to be borne by all the maintenance holders.
24. For the reasons stated above, I am of the view that the Sanad (Ext. B) cannot in any way be construed to be only in favour of Dwijraj Singh Deo. It would include within in its term all the maintenance holders.
25. This brings me to the provisions of the Bihar Land Reforms Act, 1950 (hereinafter referred to as ‘the Act’) The said Act came into force on 1-1-1956. The intermediaries interest vested in the State of Bihar on the issue of notification under Section 3 of the Act. Section 2A of the Act defines ‘intermediary’. According to the said definition, the expression ‘Intermediary interest’ shall include the expression ‘Proprietor’ or ‘tenure holder’ or ‘estate of tenure’. Section 2(q) defines ‘tenure’ to include within its ambit a tenure created for the maintenance of any person commonly known as khorposh and Babuana.. Under Section 2(r), the tenure holder means a person who has acquired from the proprietor or from any other tenure holder right to hold land for any purpose for collecting rent or for bring it under cultivation. Section 6 of the Act, inter alia, lays down that on or from the date of vesting of all the lands used for agricultural or horticultural purposes which were in possession of the intermediaries on the date of such vesting shall belong to the intermediaries. From the provision of the Act quoted above, it is evident that the plaintiff-respondent was also an intermediary in relation
to the khorposh grant including the Nij jote lands. He was, therefore, entitled to all the benefits conferred by the Act including the right to receive compensation and a share in the Nij jote lands comprised in the Sanad of 1936 (Ext. B). Same observation shall apply to village Bhalu Pani and Bhuiya Nachna.
26. It is then contended that Amrendra Pratap Singh Deo executed two deeds of gift in favour of Jageshwar Singh Deo and Ratneshwar Singh Deo on September 7, 1962 and they became the owners of the land governed by the said deeds of gift. It is not in dispute that the intermediaries interest vested in the State of Bihar on 1-1-1956. Amrendra Pratap Singh Deo was not the owner of the agricultural land to the exclusion of plaintiff-respondent and Govind Pratap Singh Deo. He could not, therefore, transfer in favour of his sons, referred to above, anything more than the share of which he was the owner. The gift deeds, referred to above, would not, therefore, confer exclusive title on the defendant-appellants in respect of the lands governed by the said deeds of gift.
27. It was faintly argued before the trial court that the suit was barred by Session 35 of the Act. The argument has not been reiterated before this Bench. I am in agreement with the reasons given by the trial court for rejecting that contention.
28. Finally it has been urged that the suit is barred by the principle of res judicata. This submission is based on the fact that Gandharb Raj Singh Deo had filed a claim before the Deputy Collector, Land Reforms, which gave rise to Compensation Case No. 172 of 1956-57. The Deputy Collector after examining the evidence came to the conclusion that the estate was impartible and was governed by the rule of lineal primogeniture. He, however, refused to pay interim compensation to Amrendra Pratap Singh Deo on the ground that the payment of ad interim compensation was a matter in dispute and could not be paid to / Amrendra Pratap Singh Deo unless the matter was decided by a competent Civil Court. Ultimately, the matter came up in M.J.C. No. 741 of 1958 before this Court and it was held by Ramaswamy, C.J. and Choudhury, J. by an order dated March 9, 1960 that the grounds on which the payment of ad interim compensation have been withheld were not legally sustainable. They, accordingly, allowed
the application filed by Amrendra Pratap Singh Deo. It may he stated that this Court in the aforesaid M.J.C was not required to determine whether the estate was impartible or not and was governed by the rule of primogeniture. The decision of the aforesaid M.J.C application, cannot, therefore, relied upon to sustain the submission of the learned counsel. The suit is not barred by the principle of res judicata. No other submission has been urged in support of these appeals.
29. I am, therefore, of the opinion that the trial court was right in passing the decree in favour of the plaintiff-respondent in Title Suit No. 19 of 1964. The said Court, was also right in dismissing Title suit No. 21 of 1964. I, accordingly, dismiss these two appeals and affirm the decrees passed by the trial court. In view of the close relations subsisting between the parties, there shall be no order as to costs.
Uday Sinha, J.
30. I agree with my learned brother that the appeal has no merit and must be dismissed. But I would like to add a few words of my own. The parties are governed by Mitakshra School of Hindu Law. There has been no partition in the family of the parties. According to defendant No. 1, the estate was impartible and governed by rule of lineal primogeniture by custom and not by grant.
31. While agreeing with my learned brother Hyder, J. on all aspects, I am of the view that the plaintiffs are entitled to a decree for partition even on a reading of section 4 of the Hindu Succession Act. The provisions in section 4 are not retrospective. But it is not a question of retrospectivity. It is not a question of divesting an estate which the owner of an impartible estate was possessed. Even extending the true effect of section 4 prospectively, the plaintiff respondents must be granted a decree for partition for reasons I am setting out here and now.
32. In the case of Shib Prasad Singh (AIR 1932 PC 216) (supra) the Privy Council laid down that the incidents of an ordinary joint family property are four in number, viz. (i) the right to partition, (ii) the right to restrain alienation, (iii) the right of maintenance; and (iv) the right of succession by survivorship. A blanket is placed on the first three incidents. They are put on the shelf. The fourth right still exists in the coparceners, namely, the right of succession by survivorship. The ban
on the right of the coparceners in regard to the first three incidents is removed by section 4 of the Hindu Succession Act which abrogated all Hindu text, rule or interpretation of Hindu Law, custom or usage as part of Hindu Law of Succession. The blanket having been removed (a) the right to partition, (b) the right to restrain alienation, except for necessity and (c) the right of maintenance get revived. There is a resurrection of all those rights in the coparceners. Thus the moment Hindu Succession Act became law the plaintiffs became possessed of the right to claim partition etc. This is not putting retrospectively on the section. It is like the moon coming out of partial eclipse. The defendant is not being divested of an estate but the restraints placed upon the rights of the coparceners are removed. In this sense the Privy Council decision in Shiba Prasad Singh’s case (supra) really boomerangs against the defendant appellants instead of aiding them. The Privy Council clearly laid down that to the extent that right of survivorship continued in members of the joint family, the estate retained its character of joint family properties. There can, therefore, be no doubt that the character of the estate in the hands of Dwijraj Singh Deo was joint family property at all times, but with certain riders. Section 4 of the Hindu Succession Act did away with those riders. On the 7th June, 1956 when Hindu Succession Act came into operation, the custom of impartiality and lineal primogeniture evaporated. The riders thus were set at nought by prospective operation of law. What was impartible till that date became partible on that day. The expanse of section 4 of the Hindu Succession Act fell for consideration in AIR 1980 SC 198, Sundari v. Laxmi, Kailasam, J. while considering with the effect of explanation to Section 7(2) of the Hindu Succession Act on the undivided interest in the property of a Hindu in Aliyasanthana, Kutumba or Kavaru, and whether the members of such a family would be deemed to have been entitled to it absolutely observed as follows : —
“Section 4 of the Act gives overriding application to the provisions of the Act and lays down that in respect of any of the matters dealt with in the Act all existing laws whether in the shape of enactment or otherwise which are inconsistent with the Act are repealed. Any other law in force immediately before the commencement of this Act ceases to apply
to Hindus in so far as it is inconsistent with any of the provisions contained in the Act. It is, therefore, clear that the provisions of Aliyasanthana law whether customary or
statutory will cease to apply, in so jar as they are inconsistent with the provisions of the Hindu Succession Act.”
The above view supports the stand that restraints on portability became non-existent on the enactment of Hindu Succession Act. The view that I have taken is supported by a Division Bench decision of the Gujarat High Court in 139 ITR 77 at P. 94 : (1982 Tax LR 1935 at p. 1945), Pratapsinhji N. Desai v. Commr. of Income-tax, Gujarat-III where a similar question fell for consideration. After a detailed discussion of the law on the subject Mehta, J with whom Divan, C. J. agreed observed as follows : —
“If the properties with which we are concerned in this reference, though impartible at one time, ceased to be impartible in view of the provisions made in the Hindu Succession Act as referred to by us hereinabove, the said properties will regain all their attributes of joint family properties, since the properties, though partible, were treated as impartible estate, having regard to the custom as to its descent and devolution on a single heir.”
The same view has been taken by the Punjab High Court in AIR 1960 Punjab 145, Smt. Taro v. Darshan Singh and AIR 1961 Punjab 510, Hans Raj Basant Ram v. Dhanwat Singh Balwant Singh.
33. A divergent view as to the effect of Section 4 of the Hindu Succession Act was taken in 130 ITR 223 : (1981 Tax LR NOC 130), Commr. of Income-tax, West Bengal-II v. U. C. Mahatab, where it was held by the Calcutta High Court that the question of the effect of section 4 on the impartibility of the estate and the rule of lineal primogeniture would arise, when succession opens on the death of the male holder. In the view of Mukharji, J. the holder of impartible estate could not be divested of the interest that he was possessed of since before the Hindu Succession Act until succession re-opened. The view taken by the Calcutta High Court was agitated before the Gujarat High Court in Pratapsinhji N. Desai’s case (1982 Tax LR 1935) (supra) where on behalf of the Revenue it was contended that the properties which had been inherited by the assessee by the rule
of lineal primogeniture would continue to be impartible till the succession opened under the Hindu Succession Act. The view taken by the Calcutta High Court and unsuccessfully agitated before the Gujarat High Court would amount to say that impartible estates by customs though abolished by the Hindu Succession Act would continue during the life-time of its holder since the Succession Act applies only to succession opening after the Hindu Succession Act was put on the Statute book, i.e. June 1956. Their Lordships of the Gurarat High Court laid down as follows (at p. 1944) :-
“We are afraid we cannot agree with this submission made on behalf of the Revenue having regard to the clear provisions made in section 4 in that behalf. Section 4 gives an overriding effect to the Act over text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act. Section 4(1)(a) prescribes that save as otherwise expressly provided in the Hindu Succession Act, 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 the said Act ‘shall cease to have effect with respect to any matter for which provision is made in this Act’. On a plain reading of this Sub-section (1)(a) we are unable to agree with the contention urged on behalf of the Revenue that the classical Hindu law as contained in the custom or usage would continue to be in operation even though a contrary provision has been made in that behalf in the Hindu Succession Act, till the succession opens after the said Act coming into force…..
….We must, therefore, reject the contention of the Revenue that the estate would still continue to be impartible estate till the succession opened on the demise of Narendrasinhji (Pratapsinhji).”
I am at one with the view taken by the Gujarat High Court and the Punjab High Court in regard to the effect of Section 4 of the Hindu Succession Act, based as it is on the law laid down by Kailasam, J in the case of Sundari v. Laxmi (AIR 1980 SC 198) (supra). I regret, I find myself in respectful disagreement with the law laid down by the Calcutta High Court in this behalf.
34. The law laid down by the Privy Council in the case of Shib Prasad Singh (AIR 1932 PC
216) (supra) is still the law of the land, having received the approval of the Supreme Court in Nagesh Bisto Desai v. Khando Tirmal Desai, ‘AIR 1982 SC 887 and in Anant Kibe v. Purushottam Rao, AIR 1984 SC 1121. In my view, therefore, the plaintiff respondents are entitled to a decree also on the basis of Section 4(1) of the Hindu Succession Act. That must be the law on the basis of prospective operation of Section 4 of the Hindu Succession Act.