PETITIONER:
THAKORE SHRI VINAYASINHJI (DEAD) BY LRS.
Vs.
RESPONDENT:
KUMAR SHRI NATWARSINHJI & ORS.
DATE OF JUDGMENT18/11/1987
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
KANIA, M.H.
CITATION:
1988 AIR 247 1988 SCR (1)1110
1988 SCC Supl. 133 JT 1987 (4) 455
1987 SCALE (2)1193
CITATOR INFO :
R 1991 SC1972 (25,26)
ACT:
Hindu Law-Whether the holder of an impartible estate to
which the rule of primogeniture applies as an essential
characteristic of such an estate, can alienate the
properties comprised in the estate, by a deed of gift or a
will.
HEADNOTE:
%
The father of the appellant Thakore Shri Vinayasinhji,
the Ruler of the former Mohanpur State, gifted certain
properties to his youngest son, the respondent No. 1, by a
deed of gift dated May 14, 1951, and also bequeathed certain
properties to the respondent No. 1 and his mother by his
will dated May 22, 1951. The father died in 1955, whereupon
the appellant became the Ruler. He instituted a suit,
challenging the validity of the said deed of gift and the
will on the ground that as the rule of primogeniture applied
to the Raj Estate, he being the eldest son succeeded to the
'Gadi' and that his father, the former Ruler, had no power
of alienation either by gift or by will and accordingly, the
disposition made by him by the above-said deed of gift and
the will in favour of his younger brother, the respondent
No. 1 was illegal and invalid.
The Civil Judge decreed the suit in part, declaring
that the deed of gift and the will were illegal, and
directing the respondent No. 1 to hand over to the appellant
the possession of the properties mentioned in the deed of
gift. The Civil Judge passed a decree for mesne profits, but
refused the prayer of the appellant for an injunction on the
ground that he had failed to prove his possession of the
properties mentioned in the plaint.
Being aggrieved by the judgment and decree of the Civil
Judge, the respondents preferred an appeal to the High
Court. The High Court held that the former Ruler had the
power of alienation and, accordingly, the deed of gift and
the will impugned were legal and valid. The judgment and
decree of the Civil Judge were set aside. Thereupon, this
appeal was filed before this Court by special leave against
the decision of the High Court. During the pendency of the
appeal, the appellant Thakore Harnathsinhji Vinayasinhji
died, leaving behind the present appellants, who were
already on record as his heirs and legal representatives.
1111
Dismissing the appeal, the Court,
^
HELD: It was not disputed that the Raj Estate of which
the deceased appellant was the Ruler is impartible and that
the rule of primogeniture-one of the essential
characteristics of an impartible estate-is also applicable.
The question involved for the consideration of the Court was
whether the holder of an impartible estate to which the rule
of primogeniture applies as an essential characteristic of
such an estate, could alienate the properties comprised in
the estate by a deed of gift or will. [1115D-E]
The law has been clearly and succinctly stated in the
illuminating judgment of Sir Dinshah Mulla in Shiba Prasad
Singh v. Rani Prayag Kumari Debi AIR 1932 P(; 216. There is
no restraint on the power of alienation of the holder of the
impartible estate, as any restraint on the power would be
incompatible with the custom of impartibility. The
impartible estate, though ancestral, is clothed with the
incidence of self-acquired and separate property except as
regards the right of survivorship which is not inconsistent
with the custom of impartibility. The right of survivorship
has been held to be a birthright and is not a mere spes
successionis similar to that of a reversioner succeeding on
the death of a Hindu widow to her husband's estate. [1116G-
H; 1117A]
In Rani Sartaj Kuari v. Deoraj Kuari, 15 IA 51, the
right of alienation of the holder has been recognised and in
Shiba Prasad's case (Supra) such right of the holder is
reiterated. Impartibility is essentially a creature of
custom which supersedes the general law. It is true that the
impartible estate retains the character of joint family
property only to the extent that there is a right of
survivorship by birth to the junior members of the family,
but, as the Privy Council has observed in Shiba Prasad's
case (supra) that in all other respects it is clothed with
the incidents of self-acquired and separate property, it
follows that the holder of the impartible estate has the
unlimited right of alienation not only by transfer inter
vivos but also by will. When the holder has the power to
dispose of the estate during his life-time, it would be
quite illogical to hold that he would not have the power of
disposition by a will. The power of alientation has been
recognised without any reservation in as much as such power
is not incompatible with the impartibility of the estate.
The rights available to the member of the Hindu joint family
under the Mitakshara law have been curtailed to a great
extent, as most of the said rights would be inconsistent
with the nature and character of the estate. [1117E-G;
1118D-E]
1112
The case of Sri Raja Rao v. Venkata Kumari, 26 IA 83 is
an authority for the proposition that a holder of an
impartible estate cannot only dispose of the estate by
transfers inter vivos but also by a will and that when such
a disposition is made by a will, it defeats the right of
survivorship. It may be that the holder of an impartible
estate can defeat the right of survivorship by leaving a
will and such right cannot be said to have been founded on
any logical basis, but it has to be borne in mind that the
whole concept of impartibility is a creature of custom
including the right of alienation of the holder of such
estate. In matters of custom, it is hardly possible to
justify every incident on some logical basis. [1120B-C]
There can be no doubt that an impartible estate is not
a separate or self-acquired property of the holder thereof,
but it has been observed by Sri Dinshal Mulla in Shiba
Prasad's case (supra) that it is clothed with the incidents
of self-acquired and separate property. One of such
incidents is that the owner is entitled to dispose of the
same in whatever manner he likes either by a transfer during
his life-time or by a will. [1120D-E]
The right of a coparcener to take by survivorship can
be defeated under certain circumstances as enumerated in
Mulla's Hindu Law. When under certain circumstances the
right of a coparcener to take by survivorship can be
defeated, no exception can be taken if the right of
survivorship of junior members of an impartible estate to
succeed to it is defeated by the holder thereof by
disposition by a will. [1121E-F]
In view of the decisions of the Privy Council and this
Court, it must be held that the holder of an impartible
estate has the power of alienation not only by transfer
inter vivos, but also by a will even though the disposition
by will may altogether defeat the right of survivorship of
the junior members of the family . [1122B]
The appellants contended alternatively that by virtue
of a family custom, the holder of the impartible estate, as
in this case, had no Ci power of alienation either by a
transfer inter vivos or by a will, and in support of this
contention, drew the attention of the Court to some
correspondence between the original appellant since deceased
and the political agent of the Mohanpur State. The
appellants placed much reliance upon the above documentary
evidence in proof of their contention that there was a
family custom prohibiting alienation by the Ruler of the
State. [1122C-D]
1113
The correspondence related only to the question of
granting jiwai (maintenance) to the younger son of the
former Ruler. It appeared from the correspondence that the
entire attempt of the appellant was against the quantum of
maintenance proposed to be granted by the Ruler to his
younger son. It was not the appellant's contention that in
view of a family custom, the Ruler had no right of
alienation, but his case was that in view of the annual
revenue of the State the quantum of the jiwai would be out
of proportion. It was only on this ground that he protested
against the proposed jiwai. The correspondence referred to
did not prove any custom of inalienability of the impartible
estate. [1123B-D]
The appellants contended that as there was no instance
of alienation till before the impugned deed of gift and
will, it should be presumed that there was a family custom
of inalienability of the estate. More or less a similar
contention made before the Privy Council in Protap Chander
Deo v. Jagdish Chandra Deo, 54 IA 289 was overruled by the
Privy Council. There must be some positive evidence of such
a custom. The correspondence relied upon as the evidence of
the alleged family custom of inalienability was far from
being such evidence, the only question that formed the
subject-matter of all this correspondence related to the
propriety of the question of jiwai. The appellants had
failed to prove that there was any family custom of
inalienability of the estate. [1123D-G]
The judgment and decree of the High Court were
affirmed. [1123G]
Rani Sartaj Kuari v. Deoraj Kuari, 15 IA 51; Shiba
Prasad Singh v. Rani Prayag Kumari Debi, AIR 1932 PC 216;
Collector of Gorakhpur v. Ram Sunder Mal, AIR 1934 PC 157;
Chinnathayi v. Kulasekara Pandiya Naicker, [19$2] SCR 1952
241; Shri Kaja Rao v. Venkata Kumari, 26 IA X3; Seth Lakshmi
Chand v. Mt. Anandi and others, AIR 1926 PC 54; Lakshman
Dada Naik v. Ramachandra Dada Naik, 7 IA 181; M.N. Arya
Murthi v. M.N. Subbaraya Setty. AIR 1972 SC 1279; Baijnath
Prasad Singh v. Tej Bali Singh, AIR 1921 PC 62; Protap
Chandra Dao v. Jagdish Chandra Deo, 54 IA 289; Mirza Raja
Shri Pashavathi Viziaram Gajapathi Raj Manne Sultan Bahadur
v. Shri Pushavathi Visweswar Gajapathi Raj, [1964] 2 SCR 403
and Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo,
[1982] 1 SCR 417, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2477 of
1972.
1114
From the Judgment and Decree dated 2.12.1969 of the
Gujarat High Court in F.A. No. 89 of 1961.
S.K. Dholakia, R.C. Bhatia and P.C. Kapur for the
Appellants.
B.K. Mehta, H.S. Parihar and N.D. Bhatti for the
Respondents.
The Judgment of the Court was delivered by
DUTT, J. This appeal by special leave is at the
instance of the plaintiff-appellant, since deceased, and is
directed against the judgment and decree of the Gujarat High
Court reversing those of the Civil Judge, Senior Division,
Himatnagar, whereby the learned Civil Judge decreed the suit
instituted by the appellant.
The late Thakore Sartansinhji, the father of the
appellant, was the Ruler of the former Mohanpur State
situated in the district of Sabarkantha, Gujarat. After
independence, the said Mohanpur State merged in the then
State of Bombay.(now the State of Maharashtra). The former
Ruler, the father of the appellant, by a deed of gift dated
May 14, 1951 gifted certain properties to his youngest son,
the respondent No. 1 herein. By his will dated May 22, 1951
the former Ruler also bequeathed certain properties to the
respondent No. 1 and his mother. The father of the appellant
died on December 9, 1955 and on his death the appellant
became the Ruler. On May 10, 1956, the suit out of which
this appeal arises, was instituted by the appellant
challenging the validity of the said deed of gift and the
will. In the suit, the case of the appellant was that as the
rule of primogeniture applied to the Raj Estate, he being
the eldest son succeeded to the ‘Gadi’. It was contended
that the former Ruler, that is, the father of the appellant,
had no power of alienation either by gift or by will and,
accordingly, the disposition made by him by the said deed of
gift and the will in favour of his younger brother, the
respondent No. 1, was illegal and invalid.
The respondents including the younger brother of the
appellant, contested t-he suit, inter alia, denying that the
former Ruler had no power of alienation as contended by the
appellant. It was averred that the deed of gift and the will
were perfectly legal and valid. The learned Civil Judge
decreed the suit in part declaring that the deed of gift and
the will were illegal and directed the respondent No. 1 to
hand-over to the appellant the possession of the properties
which were all agricultural lands, as mentioned in the deed
of gift. The learned Civil
1115
Judge passed a decree for mesne profit, but refused the
prayer of the appellant for an injunction on the ground that
the appellant had failed to prove his possession of the
properties mentioned in the plaint.
Being aggrieved by the judgment and decree of the
learned Civil Judge, the respondents preferred an appeal to
the High Court. The High Court, after considering the facts
and circumstances of the case and the evidence adduced by
the parties, held that the former Ruler had the power of
alienation and, accordingly, the deed of gift and the will
impugned in the suit, were legal and valid. The appeal was
allowed and the judgment and decree of the learned Civil
Judge were set aside. Hence this appeal by special leave.
During the pendency of the appeal in this Court, the
appellant Thakore Harnathsinhji Vinayasinhji died on June
27, 1985 leaving behind him the present appellants, who were
already on record, as his heirs and legal representatives.
It is not disputed that the Raj Estate, of which the
deceased appellant was the Ruler, is impartible and that the
rule of primogeniture, which is one of the essential
characteristics of an impartible estate, is also applicable.
The question that is involved in this appeal for our
consideration is whether the holder of an impartible estate,
to which the rule of primogeniture applies as an essential
characteristic of such an estate, can alienate the
properties comprised in the estate by a deed of gift or
will. The legal position that prevailed up to 1888 was that
a holder of an impartible estate could not transfer or
mortgage such estate beyond his own life-time so as to bind
the coparceners, except for purposes beneficial to the
family and not to himself alone. In 1888, for the first
time, in Rani Sartaj Kuari v. Deoraj Kuari, 15 IA 51 the
Privy Council recognised the power of alientation by the
holder of an impartible estate and held that such power of
alienation could be excluded by custom or by the nature of
the tenure. In that case, the Privy Council also took the
view that in an impartible Raj Estate, the son is not a co-
sharer with his father. This view, however, was not accepted
by the later Privy Council decisions and it is now well
settled that co-ownership of the joint family exists in
impartible estate.
At this stage, it will be profitable for us to refer to
the illuminating judgment of Sir Dinshah Mulla in the case
of Shiba Prasad Singh v. Rani Prayag Kurnari Debi, AIR 1932
PC 2 16. Sir Dinshah Mulla while delivering the judgment of
the Judicial Committee of the Privy Council observed as
follows:-
1116
“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
alienations by the head of the family except for
necessity; t3) 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
Kuari’s case 15 IA 5 1 and Rama Krishna v. Venkata
Kumara, 26 IA 83 (PC), and so also the third as
held in Gangadhara v. Rajah of Pittapur, 45 IA148. 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, 48 IA 195. 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
co-parcener acquires by birth in joint family
property no longer exist, the birthright of the
senior member to take by survivorship still
remains. Nor is this right a mere spes
successlonis similar to that of a reversioner
suceeding 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.”The law has been clearly and succinctly stated in the
passage extracted above. There is, therefore, no restraint
on the power of alienation of the holder of the impartible
estate, as any restraint on the power would be incompatible
with the custom of impartibility. The impartible estate,
though ancestral, is clothed with the incidents of self-
acquired and separate property, except as regards the right
of survivorship which is not inconsistent with the custom of
impartibility.1117
The right of survivorship has been held to be a birthright
and is not a mere spes successionis similar to that of a
reversioner succeeding on the death of a Hindu widow to her
husband’s estate.Mr. Dholakia, learned Counsel appearing on behalf of
the appellants, does not dispute that the holder of an
impartible estate has the power of alienation by transfer
inter vivos. It is, however, submitted by him that he has no
such power to make a disposition by a will which would
affect the right of survivorship by birth of the junior
members of the family, which is the only right that remains
and, as recognised by the Privy Council in Shiba Prasad’s
case (supra), is not opposed to the custom of impartibility.
It is submitted by the learned Counsel that disposition by
will is incompatible with the right of survivorship by
birth. The right of the junior branch to succeed by
survivorship to the Raj on the extinction of their senior
branch, has also been definitely and emphatically reaffirmed
by the Privy Council in Collector of Gorakhpur v. Ram Sundar
Mal, AIR 1934 PC 157. Counsel submits that the right of
alienation by will and the right of survivorship by birth
cannot co-exist and, as it is now a settled law that in an
impartible Raj Estate, the right of survivorship of birth of
the junior members to succeed to the estate still remains,
it will be beyond the power of the holder of the estate to
defeat such right by a will.Attractive though the contention is, we regret we are
unable to accept the same. It has been already noticed that
in Sartaj Kuari’s case (supra) the right of alienation of
the holder has been recognised and in Shiba Prasad’s case
(supra) such right of the holder is reiterated.
Impartibility is essentially a creature of custom which
supersedes the general law. It is true that the impartible
estate retains the character of joint family property only
to the extent that there is a right of survivorship by birth
to the junior members of the family but, as the Privy
Council has observed in Shiba Prasad’s case (supra) that in
all other respects it is clothed with the incidents of self-
acquired and separate property, so it follows that the
holder of the impartible estate has the unlimited right of
alienation not only by transfer inter vivos, but also by
will. When the holder has the power to dispose of the estate
during his life-time, it would be quite illogical to hold
that he would not have the power of disposition by a will.It is, however, submitted that no assumption should be
made of the power of disposition by will from the existence
of the power of the holder to alienate during his life-time.
In support of this contention, the learned Counsel for the
appellants has placed reliance upon a
1118
decision of this Court in Chinnathayi v. Kulasekara Pandiya
Naicker, [19521 SCR 241 where it has been observed by
Mahajan, J. in delivering the judgment of the Court, that in
the case of an impartible estate the power to divide it
amongst the members does not exist, though the power in the
holder to alienate it is there, and from the existence of
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 capable of partition. We do not think that
the said observation bears any analogy to the contention
made on behalf of the appellants. In that case, this Court
was concerned with the question whether the holder of an
impartible estate could divide the estate amongst the
members. In laying down that there is no such power of
division, this Court has pointed out that such a power would
be contrary to the nature and character of the estate, that
is to say, the impartibility of the estate. In the instant
case, the question is whether the holder has power of
disposition by will. The power of alienation, as already
noticed, has been recognised without any reservation
inasmuch as such power is not incompatible with the
impartibility of the estate. The rights which are available
to the members of the Hindu joint family under the
Mitakshara law have been curtailed to a great extent, as
most of the said rights would be inconsistent with the
nature and character of the estate. Chinnathayi’s case
(supra) lends no support to the contention of the
appellants.We may now consider a later decision of the Privy
Council in Sri Raja Rao v. Venkata Kumari, 26 IA 83. In that
case, the Privy Council considered the question of extension
of the decision in Sartaj Kuari’s case (supra) to a will and
it was held “If the Rajah had power to alienate, he might do
it by will and the title by the will would have priority to
the title by succession.” As the case before the Privy
Council related to an impartible Raj Estate, succession to
the estate would be by survivorship. The Privy Council,
however, took the view that title by will would have
priority to the title by succession. In other words, it
follows that the holder of the Raj Estate can defeat the
right of survivorship by disposing of the estate by a will.
The learned Counsel for the appellants, however, submits
that in laying down that an impartible Raj Estate is
alienable by a will, the Privy Council proceeded on the
basis that there was no right of survivorship by birth. We
are afraid, we are unable to accept this contention. It is
true that the Privy Council in that decision has not
referred to the right of survivorship of the junior members
of the family, but it should not be assumed that the Privy
Council was not aware of the legal position that in an
impartible Raj Estate the junior members would succeed to it
by
1119
survivorship. Raja Rao’s case (supra) is, therefore, an
authority for the proposition that a holder of an impartible
estate cannot only dispose of the estate by transfers inter
vivos, but also by a will and that when such a disposition
is made by a will, it defeats the right of survivorship.It is submitted by the learned Counsel for the
appellants that in extending the decision in Sartaj Kuari’s
case (supra), the Privy Council Raja Rao’s case (supra) did
not give any reason for extending the power of alienation of
the holder of an impartible estate to alienation by a will,
thereby defeating the right of survivorship by birth, which
is the only right that is available to the junior members of
the family. It may be that no reason has been given by the
Privy Council but, at the same time, there is also no reason
why when the holder is entitled to dispose of the estate
during his life-time, he is not so entitled to dispose of
the same by a will.Our attention has been drawn by the learned Counsel for
the appellants to a decision of the Privy Council in Seth
Lakhmi Chand v. Mt. Anandi and others, AIR 1926 PC 54. In
that case, the question that arose was whether a member of a
joint Hindu family could make a disposition by a will or
not. The Privy Council relied upon the following observation
made in its earlier decision in Lakshman Dada Naik v.
Ramchandra Dada Naik, 7IA 181:-“Its, the High Court’s, reasons for making
distinction between a gift and a devise are that
the co-parcener’s power of alienation is founded
on his right to a partition; that that right dies
with him; and that, the title of his co-sharers by
survivorship vesting in them at the moment of his
death, there remains nothing upon which the Will
can operate.”It is submitted on behalf of the appellants that the same
principle against alienability by will by a coparcener
should also be applied to an impartible estate, otherwise it
will defeat the right of survivorship by birth which is the
only right that is conceded to in favour of the junior
members of the joint Hindu family. The decision in Lakhmi
Chand’s case (supra) or in Lakshman Dada’s case (supra) does
not relate to an impartible estate, but to a coparcenary
property and, accordingly, the principle of law that is
applicable to a coparcenary property or to the coparceners
is inapplicable to an impartible estate or to the holder
thereof except, as has been noticed earlier, that an
impartible estate is considered to be a joint family
property to the extent of the junior members succeeding to
the estate by right of survivorship. Similarly
1120
the decision of this Court in M.N. Aryamurthi v. M.L.
Subbaraya Setty, AIR 1972 SC 1279 relating to coparcenary
property has no application to the instant case.It is urged on behalf of the appellants that to hold
that the holder of an impartible estate has the power of
dispossession by a will defeating the right of survivorship,
would be quite illogical. It may be that the holder of an
impartible estate can defeat the right of survivorship by
leaving a will and such right cannot be said to have been
founded on any logical basis. But, it has to be borne in
mind that the whole concept of impartibility is a creature
of custom including the right of alienation of the holder of
such estate. In matters of custom, it is hardly possible to
justify every incident on some logical basis.Much reliance has been placed by the learned Counsel
for the appellants on the decision of the Privy Council in
Baijnath Prasad Singh v. Tej Bali Singh, AIR 192 1 PC 62
where it has been ruled that the fact that a Raj Estate is
impartible does not make it a separate or self-acquired
property. It is submitted that if the impartible estate is
not a separate or self-acquired property, as held by the
Privy Council, how then a holder of such an estate will have
the power of disposition by a will. There can be no doubt
that an impartible estate is not a separate or self-acquired
property of the holder thereof, but it has been observed by
Sir Dinshah Mulla in Shiba Prasad’s case (supra) that it is
clothed with the incidents of self-acquired and separate
property. One of such incidents is that the owner is
entitled to dispose of the same in whatever manner he likes-
either by a transfer during his life-time or by a will. The
contention of the appellants proceeds on the assumption that
the right of survivorship is an immutable right and cannot
be defeated by the disposition by a will.Mr. Mehta, learned Counsel appearing on behalf of the
respondents, has invited our attention to a statement of law
in Mulla’s Hindu Law, Fifteenth Edition, Paragraph 229(2) to
show that a right of survivorship of a coparcener can be
defeated in certain cases. Paragraph 229(2) is as follows:-“Para 229(2). The right of a coparcener to take by
survivorship is defeated in the following cases:-(i) Where the deceased coparcener has sold
or mortgaged his interest, in States
where such sale or mortgage is allowed
by law;1121
(ii) Where the interest of the deceased
coparcener has been attached in his
lifetime in execution of a decree
against him. A mere decree obtained by a
creditor, not followed up by an
attachment in the lifetime of the
debtor, will not defeat the right of
survivorship, unless the judgment debtor
stood in the relation of father,
paternal grandfather or great-grandfather to the surviving
coparceners. This rule must be read
subject to the provisions of sections 6
and 30 of the Hindu Succession Act,
1956, in cases where those sections are
applicable.(iii)Where the interest of the deceased
coparcener has vested in the official
Assignee or Receiver on his insolvency.
On the annulment of insolvency the
interest which vested in the Official
Receiver revests under sec. 37 of the
Provincial Insolvency Act in the
insolvent and if on that date he is not
alive, it goes to his heirs under the
law.
Thus, the right of a coparcener to take by survivorship
can be defeated under certain circumstances, as enumerated
in Mulla’s Hindu Law in the passage extracted above. In
paragraph 587 of Mulla’s, Hindu Law, it is stated that an
impartible estate is not held in coparcenary, though it may
be joint family property. Indeed, this proposition has not
been disputed by either party in this appeal. When under
certain circumstances the right of a coparcener to take by
survivorship can be defeated, no exception can be taken, if
the right of survivorship of junior members of an impartible
estate to succeed to it is defeated by the holder thereof by
disposition by a will.
The same principle as laid down in Raja Rao’s case
(supra) has been reiterated by the Privy Council in a later
decision in Protap Chandra Deo v. Jagadish Chandra Deo, 54
IA 289. In this case it has been ruled by the Privy Council
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.
In Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj
Manne Sultan Bahadur v. Shri Pushavathi Visweswar Gajapathi
Raj, [1964] 2 SCR 403 it has been held by this Court that it
must be taken to be
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settled that a holder of an impartible estate can alienate
the estate by gift inter vivos, or even by a will, though
the family is undivided; the only limitation on this power
would flow from a family custom to the contrary or from the
condition of the tenure which has the same effect. The same
principle of law has been reiterated by this Court in Bhaiya
Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo, [1982] 1
SCR 417. In view of the above Privy Council decisions and of
the decisions of this Court, it must be held that the holder
of an impartible estate has the power of alienation not only
by transfer inter vivos, but also by a will, even though the
disposition by will may altogether defeat the right of
survivorship of the junior members of the family.
The only question that remains to be considered by us
relates to the alternative plea of the appellants that by
virtue of a family custom the holder of the impartible
estate, with which we are concerned, had no power of
alienation either by a transfer inter vivos or by a will. In
support of this contention, our attention has been drawn on
behalf of the appellants to a few correspondence between the
original appellant, since deceased, and the political agent
of the Mohanpur State. Before considering these
correspondence, a few facts are necessary to be stated. In
1938, the former Ruler, that is, the father of the deceased
appellant, during his life-time gifted certain villages and
properties by way of jiwai (maintenance) to his younger son.
In that connection, some correspondence ensued between the
appellant and the political agent of the State. Before such
a gift was made by way of jiwai to the younger son, the
original appellant by his letter dated August 1, 1937 drew
the attention of the political agent of the State to the
proposed jiwai worth, according to him, Rs.10,000. It was
stated in the said letter that despite his pointing out to
his father that the proposal of jiwai was too big in
proportion to the annual revenue of the State which was
about Rs.60,000, his father turned a deaf ear to his earnest
entreaties not to make such a jiwai. In that letter, it was
stated by him that “big jiwai was proposed contrary to the
prevailing practice in all the states and Talukas of this
Agency and the past precedent of the State”. In reply to the
said letter the political agent, by his letter dated August
13, 1937, informed the appellant that he would not sanction
any grant which the former Ruler wished to make to his
younger son without any previous discussion with the
appellant. The appellant also had written to his father on
June 26, 1938, inter alia, stating that “whatever he wished
to give him in excessive in proportion to the income of the
State and it is unreasonable and against the practice and
rules prevailing in the State”. The political agent, it
appears, refused to sanction the proposed jiwai. Further, it
appears that the appellant
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had given consent to the execution by his father of a deed
of gift dated February 9, 1940 in favour of his younger
brother for his jiwai. The political agent granted sanction
to the said deed of gift, as it was with the consent of the
appellant.
The appellants have placed much reliance upon the above
documentary evidence in proof of their contention that there
was a family custom prohibiting alienation by the Ruler of
the State. The correspondence related only to the question
of granting jiwai to the younger son of the former Ruler. It
would appear from the correspondence that the entire attempt
of the appellant was against the quantum of maintenance that
was proposed to be granted by the Ruler to his younger son.
It was not the contention of the appellant that in view of a
family custom, the Ruler had no right of alienation, but his
case was that in view of the annual revenue of the State the
quantum of the jiwai would be out of proportion. It was only
on this ground that he protested against the proposed jiwai.
We do not think that the correspondence referred to above
prove any custom of inalienability of the impartible estate.
It is submitted on behalf of the appellants that as
there was no instance of alienation till before the impugned
deed of gift and the will, it should be presumed that there
was a family custom of inalienability of the estate. More or
less, a similar contention was made before the Privy Council
in Protap Chandra Deo’s case (supra) that the absence of any
instance of a will purporting to dispose of the estate, was
itself sufficient evidence of the custom of inalienability
of the estate. The said contention was overruled by the
Privy Council. There must be some positive evidence of such
a custom. Mere absence of any instance of alienation will
not be any evidence of custom. Moreover, as noticed already,
the correspondence which are being relied upon as the
evidence of the alleged family custom of inalienability are
far from being such evidence, for the only question that
formed the subject matter of all this correspondence related
to the propriety of the quantum of jiwai. Accordingly, we
hold that the appellants have failed to prove that there was
any family custom of inalienability of the estate. No other
point has been urged in this appeal by either party.
For the reasons aforesaid, the judgment and decree of
the High Court are affirmed and this appeal is dismissed.
There will, however, be no order as to costs in this Court.
S.L. Appeal dismissed.
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