{"id":69028,"date":"1987-11-18T00:00:00","date_gmt":"1987-11-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thakore-shri-vinayasinhji-dead-vs-kumar-shri-natwarsinhji-ors-on-18-november-1987"},"modified":"2015-08-28T06:06:10","modified_gmt":"2015-08-28T00:36:10","slug":"thakore-shri-vinayasinhji-dead-vs-kumar-shri-natwarsinhji-ors-on-18-november-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thakore-shri-vinayasinhji-dead-vs-kumar-shri-natwarsinhji-ors-on-18-november-1987","title":{"rendered":"Thakore Shri Vinayasinhji (Dead) … vs Kumar Shri Natwarsinhji & Ors on 18 November, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Thakore Shri Vinayasinhji (Dead) … vs Kumar Shri Natwarsinhji & Ors on 18 November, 1987<\/div>\n
Equivalent citations: 1988 AIR 247, \t\t 1988 SCR (1)1110<\/div>\n
Author: M Dutt<\/div>\n
Bench: Dutt, M.M. (J)<\/div>\n
           PETITIONER:\nTHAKORE SHRI VINAYASINHJI (DEAD) BY LRS.\n\n\tVs.\n\nRESPONDENT:\nKUMAR SHRI NATWARSINHJI & ORS.\n\nDATE OF JUDGMENT18\/11\/1987\n\nBENCH:\nDUTT, M.M. (J)\nBENCH:\nDUTT, M.M. (J)\nKANIA, M.H.\n\nCITATION:\n 1988 AIR  247\t\t  1988 SCR  (1)1110\n 1988 SCC  Supl.  133\t  JT 1987 (4)\t455\n 1987 SCALE  (2)1193\n CITATOR INFO :\n R\t    1991 SC1972\t (25,26)\n\n\nACT:\n     Hindu Law-Whether the holder of an impartible estate to\nwhich the  rule of  primogeniture applies  as  an  essential\ncharacteristic\tof   such  an\testate,\t can   alienate\t the\nproperties comprised  in the  estate, by a deed of gift or a\nwill.\n\n\n\nHEADNOTE:\n%\n     The father\t of the appellant Thakore Shri Vinayasinhji,\nthe Ruler  of the  former  Mohanpur  State,  gifted  certain\nproperties to  his youngest  son, the respondent No. 1, by a\ndeed of gift dated May 14, 1951, and also bequeathed certain\nproperties to  the respondent  No. 1  and his  mother by his\nwill dated  May 22, 1951. The father died in 1955, whereupon\nthe appellant  became  the  Ruler.  He\tinstituted  a  suit,\nchallenging the\t validity of  the said\tdeed of gift and the\nwill on the ground that as the rule of primogeniture applied\nto the\tRaj Estate, he being the eldest son succeeded to the\n'Gadi' and  that his  father, the former Ruler, had no power\nof alienation either by gift or by will and accordingly, the\ndisposition made  by him  by the above-said deed of gift and\nthe will  in favour  of his  younger brother, the respondent\nNo. 1 was illegal and invalid.\n     The Civil\tJudge decreed  the suit\t in part,  declaring\nthat the  deed of  gift\t and  the  will\t were  illegal,\t and\ndirecting the respondent No. 1 to hand over to the appellant\nthe possession\tof the\tproperties mentioned  in the deed of\ngift. The Civil Judge passed a decree for mesne profits, but\nrefused the prayer of the appellant for an injunction on the\nground that  he had  failed to\tprove his  possession of the\nproperties mentioned in the plaint.\n     Being aggrieved by the judgment and decree of the Civil\nJudge, the  respondents preferred  an  appeal  to  the\tHigh\nCourt. The  High Court\theld that  the former  Ruler had the\npower of  alienation and,  accordingly, the deed of gift and\nthe will  impugned were\t legal and  valid. The\tjudgment and\ndecree of  the Civil  Judge were  set aside. Thereupon, this\nappeal was  filed before this Court by special leave against\nthe decision  of the  High Court. During the pendency of the\nappeal, the  appellant\tThakore\t Harnathsinhji\tVinayasinhji\ndied,  leaving\tbehind\tthe  present  appellants,  who\twere\nalready on record as his heirs and legal representatives.\n1111\n     Dismissing the appeal, the Court,\n^\n     HELD: It  was not disputed that the Raj Estate of which\nthe deceased  appellant was the Ruler is impartible and that\nthe   rule    of   primogeniture-one\tof   the   essential\ncharacteristics of  an impartible estate-is also applicable.\nThe question involved for the consideration of the Court was\nwhether the holder of an impartible estate to which the rule\nof primogeniture  applies as  an essential characteristic of\nsuch an\t estate, could\talienate the properties comprised in\nthe estate by a deed of gift or will. [1115D-E]\n     The law  has been\tclearly and succinctly stated in the\nilluminating judgment  of Sir  Dinshah Mulla in Shiba Prasad\nSingh v.  Rani Prayag Kumari Debi AIR 1932 P(; 216. There is\nno restraint on the power of alienation of the holder of the\nimpartible estate,  as any  restraint on  the power would be\nincompatible  with   the  custom   of\timpartibility.\t The\nimpartible estate,  though ancestral,  is clothed  with\t the\nincidence of  self-acquired and\t separate property except as\nregards the  right of survivorship which is not inconsistent\nwith the  custom of impartibility. The right of survivorship\nhas been  held to  be a\t birthright and\t is not\t a mere spes\nsuccessionis similar  to that of a reversioner succeeding on\nthe death  of a Hindu widow to her husband's estate. [1116G-\nH; 1117A]\n     In Rani  Sartaj Kuari  v. Deoraj  Kuari, 15  IA 51, the\nright of alienation of the holder has been recognised and in\nShiba Prasad's\tcase (Supra)  such right  of the  holder  is\nreiterated.  Impartibility  is\tessentially  a\tcreature  of\ncustom which supersedes the general law. It is true that the\nimpartible estate  retains the\tcharacter  of  joint  family\nproperty only  to the  extent  that  there  is\ta  right  of\nsurvivorship by\t birth to  the junior members of the family,\nbut, as\t the Privy  Council has\t observed in  Shiba Prasad's\ncase (supra)  that in  all other respects it is clothed with\nthe incidents  of self-acquired\t and separate  property,  it\nfollows that  the holder  of the  impartible estate  has the\nunlimited right\t of alienation\tnot only  by transfer  inter\nvivos but  also by  will. When\tthe holder  has the power to\ndispose of  the estate\tduring his  life-time, it  would  be\nquite illogical\t to hold that he would not have the power of\ndisposition by\ta will.\t The power  of alientation  has been\nrecognised without  any reservation in as much as such power\nis not\tincompatible with  the impartibility  of the estate.\nThe rights available to the member of the Hindu joint family\nunder the  Mitakshara law  have been  curtailed to  a  great\nextent, as  most of  the said  rights would  be inconsistent\nwith the  nature and  character\t of  the  estate.  [1117E-G;\n1118D-E]\n1112\n     The case of Sri Raja Rao v. Venkata Kumari, 26 IA 83 is\nan authority  for  the\tproposition  that  a  holder  of  an\nimpartible estate  cannot only\tdispose\t of  the  estate  by\ntransfers inter\t vivos but also by a will and that when such\na disposition  is made\tby a  will, it\tdefeats the right of\nsurvivorship. It  may be  that the  holder of  an impartible\nestate can  defeat the\tright of  survivorship by  leaving a\nwill and  such right  cannot be said to have been founded on\nany logical  basis, but\t it has to be borne in mind that the\nwhole concept  of impartibility\t is  a\tcreature  of  custom\nincluding the  right of\t alienation of\tthe holder  of\tsuch\nestate. In  matters of\tcustom, it  is\thardly\tpossible  to\njustify every incident on some logical basis. [1120B-C]\n     There can\tbe no doubt that an impartible estate is not\na separate  or self-acquired property of the holder thereof,\nbut it\thas been  observed by  Sri Dinshal  Mulla  in  Shiba\nPrasad's case  (supra) that it is clothed with the incidents\nof  self-acquired   and\t separate   property.  One  of\tsuch\nincidents is  that the\towner is  entitled to dispose of the\nsame in whatever manner he likes either by a transfer during\nhis life-time or by a will. [1120D-E]\n     The right\tof a  coparcener to take by survivorship can\nbe defeated  under certain  circumstances as  enumerated  in\nMulla's Hindu  Law. When  under\t certain  circumstances\t the\nright of  a  coparcener\t to  take  by  survivorship  can  be\ndefeated,  no  exception  can  be  taken  if  the  right  of\nsurvivorship of\t junior members\t of an\timpartible estate to\nsucceed\t to   it  is  defeated\tby  the\t holder\t thereof  by\ndisposition by a will. [1121E-F]\n     In view  of the decisions of the Privy Council and this\nCourt, it  must be  held that  the holder  of an  impartible\nestate has  the power  of alienation  not only\tby  transfer\ninter vivos,  but also by a will even though the disposition\nby will\t may altogether\t defeat the right of survivorship of\nthe junior members of the family . [1122B]\n     The appellants  contended alternatively  that by virtue\nof a  family custom, the holder of the impartible estate, as\nin this\t case, had  no Ci  power of  alienation either\tby a\ntransfer inter\tvivos or  by a\twill, and in support of this\ncontention,  drew   the\t attention  of\tthe  Court  to\tsome\ncorrespondence between the original appellant since deceased\nand  the   political  agent   of  the  Mohanpur\t State.\t The\nappellants placed  much reliance  upon the above documentary\nevidence in  proof of  their contention\t that  there  was  a\nfamily custom  prohibiting alienation  by the  Ruler of\t the\nState. [1122C-D]\n1113\n     The correspondence\t related only  to  the\tquestion  of\ngranting jiwai\t(maintenance) to  the  younger\tson  of\t the\nformer Ruler.  It appeared  from the correspondence that the\nentire attempt\tof the\tappellant was against the quantum of\nmaintenance proposed  to be  granted by\t the  Ruler  to\t his\nyounger son.  It was  not the appellant's contention that in\nview  of  a  family  custom,  the  Ruler  had  no  right  of\nalienation, but\t his case  was that  in view  of the  annual\nrevenue of  the State  the quantum of the jiwai would be out\nof proportion.\tIt was only on this ground that he protested\nagainst the  proposed jiwai.  The correspondence referred to\ndid not prove any custom of inalienability of the impartible\nestate. [1123B-D]\n     The appellants  contended that as there was no instance\nof alienation  till before  the impugned  deed of  gift\t and\nwill, it  should be  presumed that there was a family custom\nof inalienability  of the  estate. More\t or less  a  similar\ncontention made\t before the  Privy Council in Protap Chander\nDeo v.\tJagdish Chandra\t Deo, 54 IA 289 was overruled by the\nPrivy Council.\tThere must be some positive evidence of such\na custom.  The correspondence relied upon as the evidence of\nthe alleged  family custom  of inalienability  was far\tfrom\nbeing such  evidence, the  only\t question  that\t formed\t the\nsubject-matter of  all this  correspondence related  to\t the\npropriety of  the question  of\tjiwai.\tThe  appellants\t had\nfailed\tto  prove  that\t there\twas  any  family  custom  of\ninalienability of the estate. [1123D-G]\n     The  judgment   and  decree  of  the  High\t Court\twere\naffirmed. [1123G]\n     Rani Sartaj  Kuari v.  Deoraj Kuari,  15 IA  51;  Shiba\nPrasad Singh  v. Rani  Prayag Kumari  Debi, AIR 1932 PC 216;\nCollector of  Gorakhpur v.  Ram Sunder Mal, AIR 1934 PC 157;\nChinnathayi v.\tKulasekara Pandiya  Naicker,<\/a> [19$2] SCR 1952\n241; Shri Kaja Rao v. Venkata Kumari, 26 IA X3; Seth Lakshmi\nChand v.  Mt. Anandi  and others,  AIR 1926  PC 54; Lakshman\nDada Naik  v. Ramachandra  Dada Naik,  7 IA  181; M.N.\tArya\nMurthi v.  M.N. Subbaraya  Setty. AIR 1972 SC 1279; Baijnath\nPrasad Singh  v. Tej  Bali Singh,  AIR 1921  PC\t 62;  Protap\nChandra Dao  v. Jagdish\t Chandra Deo,  54 IA 289; Mirza Raja\nShri Pashavathi\t Viziaram Gajapathi Raj Manne Sultan Bahadur\nv. Shri Pushavathi Visweswar Gajapathi Raj,<\/a> [1964] 2 SCR 403\nand Bhaiya Ramanuj Pratap Deo v. Lalu Maheshanuj Pratap Deo,<\/a>\n[1982] 1 SCR 417, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2477 of
\n1972.\n<\/p>\n
1114<\/span><\/p>\n
     From the  Judgment and  Decree dated  2.12.1969 of\t the
\nGujarat High Court in F.A. No. 89 of 1961.\n<\/p>\n
     S.K. Dholakia,  R.C. Bhatia  and  P.C.  Kapur  for\t the
\nAppellants.\n<\/p>\n
     B.K. Mehta,  H.S.\tParihar\t and  N.D.  Bhatti  for\t the
\nRespondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     DUTT, J.  This  appeal  by\t special  leave\t is  at\t the
\ninstance of  the plaintiff-appellant, since deceased, and is
\ndirected against the judgment and decree of the Gujarat High
\nCourt reversing\t those of  the Civil Judge, Senior Division,
\nHimatnagar, whereby the learned Civil Judge decreed the suit
\ninstituted by the appellant.\n<\/p>\n
     The  late\tThakore\t Sartansinhji,\tthe  father  of\t the
\nappellant, was\tthe  Ruler  of\tthe  former  Mohanpur  State
\nsituated in  the district  of  Sabarkantha,  Gujarat.  After
\nindependence, the  said Mohanpur  State merged\tin the\tthen
\nState of  Bombay.(now the  State of Maharashtra). The former
\nRuler, the  father of the appellant, by a deed of gift dated
\nMay 14,\t 1951 gifted certain properties to his youngest son,
\nthe respondent\tNo. 1 herein. By his will dated May 22, 1951
\nthe former  Ruler also\tbequeathed certain properties to the
\nrespondent No. 1 and his mother. The father of the appellant
\ndied on\t December 9,  1955 and\ton his\tdeath the  appellant
\nbecame the  Ruler. On  May 10,\t1956, the  suit out of which
\nthis  appeal   arises,\twas   instituted  by  the  appellant
\nchallenging the\t validity of  the said\tdeed of gift and the
\nwill. In the suit, the case of the appellant was that as the
\nrule of\t primogeniture applied\tto the\tRaj Estate, he being
\nthe eldest  son succeeded  to the  ‘Gadi’. It  was contended
\nthat the former Ruler, that is, the father of the appellant,
\nhad no\tpower of  alienation either  by gift or by will and,
\naccordingly, the disposition made by him by the said deed of
\ngift and  the will  in favour  of his  younger brother,\t the
\nrespondent No. 1, was illegal and invalid.\n<\/p>\n
     The respondents  including the  younger brother  of the
\nappellant, contested t-he suit, inter alia, denying that the
\nformer Ruler  had no power of alienation as contended by the
\nappellant. It was averred that the deed of gift and the will
\nwere perfectly\tlegal and  valid. The  learned\tCivil  Judge
\ndecreed the suit in part declaring that the deed of gift and
\nthe will  were illegal\tand directed the respondent No. 1 to
\nhand-over to  the appellant the possession of the properties
\nwhich were  all agricultural lands, as mentioned in the deed
\nof gift. The learned Civil
\n1115<\/span>
\nJudge passed  a decree\tfor mesne  profit, but\trefused\t the
\nprayer of the appellant for an injunction on the ground that
\nthe appellant  had failed  to prove  his possession  of\t the
\nproperties mentioned in the plaint.\n<\/p>\n
     Being aggrieved  by the  judgment\tand  decree  of\t the
\nlearned Civil  Judge, the respondents preferred an appeal to
\nthe High  Court. The High Court, after considering the facts
\nand circumstances  of the  case and  the evidence adduced by
\nthe parties,  held that\t the former  Ruler had\tthe power of
\nalienation and,\t accordingly, the  deed of gift and the will
\nimpugned in  the suit,\twere legal and valid. The appeal was
\nallowed and  the judgment  and decree  of the  learned Civil
\nJudge were set aside. Hence this appeal by special leave.\n<\/p>\n
     During the\t pendency of  the appeal  in this Court, the
\nappellant Thakore  Harnathsinhji Vinayasinhji  died on\tJune
\n27, 1985 leaving behind him the present appellants, who were
\nalready on record, as his heirs and legal representatives.\n<\/p>\n
     It is  not disputed  that the  Raj Estate, of which the
\ndeceased appellant was the Ruler, is impartible and that the
\nrule  of  primogeniture,  which\t is  one  of  the  essential
\ncharacteristics of an impartible estate, is also applicable.
\nThe question  that  is\tinvolved  in  this  appeal  for\t our
\nconsideration is whether the holder of an impartible estate,
\nto which  the rule  of primogeniture applies as an essential
\ncharacteristic\tof   such  an\testate,\t can   alienate\t the
\nproperties comprised  in the  estate by\t a deed\t of gift  or
\nwill. The  legal position that prevailed up to 1888 was that
\na holder  of an\t impartible estate  could  not\ttransfer  or
\nmortgage such  estate beyond his own life-time so as to bind
\nthe coparceners,  except  for  purposes\t beneficial  to\t the
\nfamily and  not to  himself alone.  In 1888,  for the  first
\ntime, in  Rani Sartaj  Kuari v.\t Deoraj Kuari,\t15 IA 51 the
\nPrivy Council  recognised the  power of\t alientation by\t the
\nholder of  an impartible  estate and held that such power of
\nalienation could  be excluded  by custom or by the nature of
\nthe tenure.  In that  case, the\t Privy Council also took the
\nview that  in an impartible Raj Estate, the son is not a co-
\nsharer with his father. This view, however, was not accepted
\nby the\tlater Privy  Council decisions\tand it\tis now\twell
\nsettled that  co-ownership of  the joint  family  exists  in
\nimpartible estate.\n<\/p>\n
     At this stage, it will be profitable for us to refer to
\nthe illuminating  judgment of  Sir Dinshah Mulla in the case
\nof Shiba  Prasad Singh v. Rani Prayag Kurnari Debi, AIR 1932
\nPC 2  16. Sir Dinshah Mulla while delivering the judgment of
\nthe Judicial  Committee of  the Privy  Council\tobserved  as
\nfollows:-\n<\/p>\n
1116<\/span><\/p>\n
\t  “Impartibility  is   essentially  a\tcreature  of
\n\t  custom. In  the  case\t of  ordinary  joint  family
\n\t  property, the\t members of the family have; (1) the
\n\t  right of  partition; (2)  the\t right\tto  restrain
\n\t  alienations by  the head  of the family except for
\n\t  necessity; t3)  the right  of maintenance; and (4)
\n\t  the right  of survivorship..\tThe first  of  these
\n\t  rights cannot\t exist in  the case of an impartible
\n\t  estate, though  ancestral, from the very nature of
\n\t  the estate.  The second  is incompatible  with the
\n\t  custom of  impartibility as  laid down  in  Satraj
\n\t  Kuari’s case 15 IA 5 1 and Rama Krishna v. Venkata
\n\t  Kumara, 26  IA 83  (PC), and\tso also the third as
\n\t  held in  Gangadhara v.  Rajah of  Pittapur, 45  IA<\/p>\n
\t  148.\tTo  this  extent  the  general\tlaw  of\t the
\n\t  Mitakshara has  been superseded by custom, and the
\n\t  impartible estate,  though ancestral,\t is  clothed
\n\t  with the  incidents of  self-acquired and separate
\n\t  property. But\t the right  of survivorship  is\t not
\n\t  inconsistent with  the  custom  of  impartibility.
\n\t  This right  therefore still  remains, and  this is
\n\t  what was  held in  Baijnath’s case,  48 IA 195. To
\n\t  this extent the estate still retains its character
\n\t  of joint  family property,  and its  devolution is
\n\t  governed by  the general Mitakshara law applicable
\n\t  to such  property. Though the other rights which a
\n\t  co-parcener acquires\tby  birth  in  joint  family
\n\t  property no  longer exist,  the birthright  of the
\n\t  senior  member   to  take  by\t survivorship  still
\n\t  remains.  Nor\t  is  this   right   a\t mere\tspes
\n\t  successlonis similar\tto  that  of  a\t reversioner
\n\t  suceeding on\tthe death  of a\t Hindu widow  to her
\n\t  husband’s estate.  It is  a right which is capable
\n\t  of being  renounced and  surrendered.\t Such  being
\n\t  their Lordships’ view, it follows that in order to
\n\t  establish that a family governed by the Mitakshara
\n\t  in which  there is  an ancestral impartible estate
\n\t  has ceased  to be  joint, it is necessary to prove
\n\t  an intention,\t express or  implied, on the part of
\n\t  the junior members of the family to renounce their
\n\t  right of  succession to  the\testate.\t It  is\t not
\n\t  sufficient to show a separation merely in food and
\n\t  worship.”<\/p><\/blockquote>\n
     The law  has been\tclearly and succinctly stated in the
\npassage extracted  above. There\t is, therefore, no restraint
\non the\tpower of  alienation of the holder of the impartible
\nestate, as  any restraint on the power would be incompatible
\nwith the  custom of  impartibility. The\t impartible  estate,
\nthough ancestral,  is clothed  with the\t incidents of  self-
\nacquired and  separate property, except as regards the right
\nof survivorship which is not inconsistent with the custom of
\nimpartibility.\n<\/p>\n
1117<\/span><\/p>\n
The right  of survivorship  has been held to be a birthright
\nand is\tnot a  mere spes  successionis similar\tto that of a
\nreversioner succeeding\ton the death of a Hindu widow to her
\nhusband’s estate.\n<\/p>\n
     Mr. Dholakia,  learned Counsel  appearing on  behalf of
\nthe appellants,\t does not  dispute that\t the  holder  of  an
\nimpartible estate  has the  power of  alienation by transfer
\ninter vivos. It is, however, submitted by him that he has no
\nsuch power  to make  a disposition  by a  will\twhich  would
\naffect the  right of  survivorship by  birth of\t the  junior
\nmembers of  the family, which is the only right that remains
\nand, as\t recognised by\tthe Privy  Council in Shiba Prasad’s
\ncase (supra), is not opposed to the custom of impartibility.
\nIt is  submitted by  the learned Counsel that disposition by
\nwill is\t incompatible with  the\t right\tof  survivorship  by
\nbirth.\tThe  right  of\tthe  junior  branch  to\t succeed  by
\nsurvivorship to\t the Raj  on the  extinction of their senior
\nbranch, has also been definitely and emphatically reaffirmed
\nby the Privy Council in Collector of Gorakhpur v. Ram Sundar
\nMal, AIR  1934 PC  157. Counsel\t submits that  the right  of
\nalienation by  will and\t the right  of survivorship by birth
\ncannot co-exist\t and, as  it is now a settled law that in an
\nimpartible Raj Estate, the right of survivorship of birth of
\nthe junior  members to\tsucceed to the estate still remains,
\nit will\t be beyond  the power of the holder of the estate to
\ndefeat such right by a will.\n<\/p>\n
     Attractive though\tthe contention\tis, we regret we are
\nunable to  accept the same. It has been already noticed that
\nin Sartaj  Kuari’s case\t (supra) the  right of alienation of
\nthe holder  has been  recognised and  in Shiba Prasad’s case
\n(supra)\t such\tright\tof   the   holder   is\t reiterated.
\nImpartibility is  essentially a\t creature  of  custom  which
\nsupersedes the\tgeneral law.  It is true that the impartible
\nestate retains\tthe character  of joint family property only
\nto the extent that there is a right of survivorship by birth
\nto the\tjunior members\tof the\tfamily\tbut,  as  the  Privy
\nCouncil has  observed in Shiba Prasad’s case (supra) that in
\nall other respects it is clothed with the incidents of self-
\nacquired and  separate property,  so  it  follows  that\t the
\nholder of  the impartible  estate has the unlimited right of
\nalienation not\tonly by\t transfer inter\t vivos, but  also by
\nwill. When the holder has the power to dispose of the estate
\nduring his  life-time, it  would be  quite illogical to hold
\nthat he would not have the power of disposition by a will.\n<\/p>\n
     It is,  however, submitted that no assumption should be
\nmade of\t the power of disposition by will from the existence
\nof the power of the holder to alienate during his life-time.
\nIn support  of this  contention, the learned Counsel for the
\nappellants has placed reliance upon a
\n1118<\/span>
\ndecision of  this Court in Chinnathayi v. Kulasekara Pandiya
\nNaicker,<\/a> [19521\t SCR 241  where\t it  has  been\tobserved  by
\nMahajan, J. in delivering the judgment of the Court, that in
\nthe case  of an\t impartible estate  the power  to divide  it
\namongst the  members does not exist, though the power in the
\nholder to  alienate it\tis there,  and from the existence of
\none power  the other  cannot be deduced as it is destructive
\nof the\tvery nature and character of the estate and makes it
\npartible property capable of partition. We do not think that
\nthe said  observation bears  any analogy  to the  contention
\nmade on\t behalf of  the appellants. In that case, this Court
\nwas concerned  with the\t question whether  the holder  of an
\nimpartible  estate  could  divide  the\testate\tamongst\t the
\nmembers. In  laying down  that there  is no  such  power  of
\ndivision, this Court has pointed out that such a power would
\nbe contrary  to the nature and character of the estate, that
\nis to  say, the\t impartibility of the estate. In the instant
\ncase, the  question is\twhether\t the  holder  has  power  of
\ndisposition by\twill. The  power of  alienation, as  already
\nnoticed,  has\tbeen  recognised   without  any\t reservation
\ninasmuch  as   such  power  is\tnot  incompatible  with\t the
\nimpartibility of  the estate. The rights which are available
\nto  the\t  members  of  the  Hindu  joint  family  under\t the
\nMitakshara law\thave been  curtailed to\t a great  extent, as
\nmost of\t the said  rights would\t be  inconsistent  with\t the
\nnature and  character  of  the\testate.\t Chinnathayi’s\tcase
\n(supra)\t lends\t no  support   to  the\t contention  of\t the
\nappellants.\n<\/p>\n
     We may  now consider  a later  decision  of  the  Privy
\nCouncil in Sri Raja Rao v. Venkata Kumari, 26 IA 83. In that
\ncase, the Privy Council considered the question of extension
\nof the decision in Sartaj Kuari’s case (supra) to a will and
\nit was held “If the Rajah had power to alienate, he might do
\nit by  will and the title by the will would have priority to
\nthe title  by succession.”  As the  case  before  the  Privy
\nCouncil related\t to an\timpartible Raj Estate, succession to
\nthe estate  would be  by survivorship.\tThe  Privy  Council,
\nhowever, took  the  view  that\ttitle  by  will\t would\thave
\npriority to  the title\tby succession.\tIn other  words,  it
\nfollows that  the holder  of the  Raj Estate  can defeat the
\nright of  survivorship by disposing of the estate by a will.
\nThe learned  Counsel for  the appellants,  however,  submits
\nthat in\t laying\t down  that  an\t impartible  Raj  Estate  is
\nalienable by  a will,  the Privy  Council proceeded  on\t the
\nbasis that  there was  no right of survivorship by birth. We
\nare afraid,  we are  unable to accept this contention. It is
\ntrue that  the\tPrivy  Council\tin  that  decision  has\t not
\nreferred to  the right of survivorship of the junior members
\nof the\tfamily, but  it should not be assumed that the Privy
\nCouncil was  not aware\tof the\tlegal position\tthat  in  an
\nimpartible Raj Estate the junior members would succeed to it
\nby
\n1119<\/span>
\nsurvivorship. Raja  Rao’s case\t(supra)\t is,  therefore,  an
\nauthority for the proposition that a holder of an impartible
\nestate cannot  only dispose of the estate by transfers inter
\nvivos, but  also by  a will and that when such a disposition
\nis made by a will, it defeats the right of survivorship.\n<\/p>\n
     It\t is   submitted\t by  the  learned  Counsel  for\t the
\nappellants that\t in extending the decision in Sartaj Kuari’s
\ncase (supra),  the Privy Council Raja Rao’s case (supra) did
\nnot give any reason for extending the power of alienation of
\nthe holder  of an impartible estate to alienation by a will,
\nthereby defeating  the right of survivorship by birth, which
\nis the only right that is available to the junior members of
\nthe family.  It may  be that no reason has been given by the
\nPrivy Council but, at the same time, there is also no reason
\nwhy when  the holder  is entitled  to dispose  of the estate
\nduring his  life-time, he  is not  so entitled to dispose of
\nthe same by a will.\n<\/p>\n
     Our attention has been drawn by the learned Counsel for
\nthe appellants\tto a  decision of  the Privy Council in Seth
\nLakhmi Chand  v. Mt.  Anandi and  others, AIR 1926 PC 54. In
\nthat case, the question that arose was whether a member of a
\njoint Hindu  family could  make a  disposition by  a will or
\nnot. The Privy Council relied upon the following observation
\nmade in\t its earlier  decision\tin  Lakshman  Dada  Naik  v.
\nRamchandra Dada Naik, 7IA 181:-\n<\/p>\n
\t  “Its,\t the   High  Court’s,\treasons\t for  making
\n\t  distinction between  a gift  and a devise are that
\n\t  the co-parcener’s  power of  alienation is founded
\n\t  on his  right to a partition; that that right dies
\n\t  with him; and that, the title of his co-sharers by
\n\t  survivorship vesting\tin them at the moment of his
\n\t  death, there\tremains nothing\t upon which the Will
\n\t  can operate.”\n<\/p><\/blockquote>\n
It is  submitted on  behalf of\tthe appellants that the same
\nprinciple against  alienability\t by  will  by  a  coparcener
\nshould also be applied to an impartible estate, otherwise it
\nwill defeat  the right of survivorship by birth which is the
\nonly right  that is  conceded to  in favour  of\t the  junior
\nmembers of  the joint  Hindu family.  The decision in Lakhmi
\nChand’s case (supra) or in Lakshman Dada’s case (supra) does
\nnot relate  to an  impartible estate,  but to  a coparcenary
\nproperty and,  accordingly, the\t principle of  law  that  is
\napplicable to  a coparcenary  property or to the coparceners
\nis inapplicable\t to an\timpartible estate  or to  the holder
\nthereof\t except,  as  has  been\t noticed  earlier,  that  an
\nimpartible  estate  is\tconsidered  to\tbe  a  joint  family
\nproperty to  the extent\t of the junior members succeeding to
\nthe estate by right of survivorship. Similarly
\n1120<\/span>
\nthe decision  of this  Court  in  M.N.\tAryamurthi  v.\tM.L.
\nSubbaraya Setty,  AIR 1972  SC 1279  relating to coparcenary
\nproperty has no application to the instant case.\n<\/p>\n
     It is  urged on  behalf of\t the appellants that to hold
\nthat the  holder of  an impartible  estate has\tthe power of
\ndispossession by a will defeating the right of survivorship,
\nwould be  quite illogical.  It may  be that the holder of an
\nimpartible estate  can defeat  the right  of survivorship by
\nleaving a  will and  such right\t cannot be said to have been
\nfounded on  any logical\t basis. But,  it has  to be borne in
\nmind that  the whole  concept of impartibility is a creature
\nof custom including the right of alienation of the holder of
\nsuch estate.  In matters of custom, it is hardly possible to
\njustify every incident on some logical basis.\n<\/p>\n
     Much reliance  has been  placed by\t the learned Counsel
\nfor the\t appellants on\tthe decision of the Privy Council in
\nBaijnath Prasad\t Singh v.  Tej Bali  Singh, AIR\t 192 1 PC 62
\nwhere it  has been  ruled that the fact that a Raj Estate is
\nimpartible does\t not make  it a\t separate  or  self-acquired
\nproperty. It  is submitted  that if the impartible estate is
\nnot a  separate or  self-acquired property,  as held  by the
\nPrivy Council, how then a holder of such an estate will have
\nthe power  of disposition  by a\t will. There can be no doubt
\nthat an impartible estate is not a separate or self-acquired
\nproperty of  the holder thereof, but it has been observed by
\nSir Dinshah  Mulla in Shiba Prasad’s case (supra) that it is
\nclothed with  the incidents  of self-acquired  and  separate
\nproperty. One  of  such\t incidents  is\tthat  the  owner  is
\nentitled to dispose of the same in whatever manner he likes-
\neither by  a transfer during his life-time or by a will. The
\ncontention of the appellants proceeds on the assumption that
\nthe right  of survivorship  is an immutable right and cannot
\nbe defeated by the disposition by a will.\n<\/p>\n
     Mr. Mehta,\t learned Counsel  appearing on behalf of the
\nrespondents, has invited our attention to a statement of law
\nin Mulla’s Hindu Law, Fifteenth Edition, Paragraph 229(2) to
\nshow that  a right  of survivorship  of a  coparcener can be
\ndefeated in certain cases. Paragraph 229(2) is as follows:-\n<\/p>\n
\t  “Para 229(2). The right of a coparcener to take by
\n\t  survivorship is defeated in the following cases:-\n<\/p><\/blockquote>\n
\t       (i)  Where the  deceased coparcener  has sold
\n\t\t    or mortgaged  his  interest,  in  States
\n\t\t    where such\tsale or\t mortgage is allowed
\n\t\t    by law;\n<\/p><\/blockquote>\n
1121<\/span><\/p>\n
\t       (ii) Where  the\t interest  of  the  deceased
\n\t\t    coparcener\thas  been  attached  in\t his
\n\t\t    lifetime  in   execution  of   a  decree
\n\t\t    against him. A mere decree obtained by a
\n\t\t    creditor,  not   followed\tup   by\t  an
\n\t\t    attachment\tin   the  lifetime   of\t the
\n\t\t    debtor, will  not defeat  the  right  of
\n\t\t    survivorship, unless the judgment debtor
\n\t\t    stood  in\tthe  relation\tof   father,
\n\t\t    paternal\tgrandfather\tor    great-\n<\/p><\/blockquote>\n
\t\t    grandfather\t    to\t   the\t   surviving
\n\t\t    coparceners.  This\trule  must  be\tread
\n\t\t    subject to\tthe provisions of sections 6
\n\t\t    and 30  of\tthe  Hindu  Succession\tAct,
\n\t\t    1956, in  cases where those sections are
\n\t\t    applicable.\n<\/p><\/blockquote>\n
\t       (iii)Where  the\t interest  of  the  deceased
\n\t\t    coparcener has  vested in  the  official
\n\t\t    Assignee or\t Receiver on his insolvency.
\n\t\t    On\tthe   annulment\t of  insolvency\t the
\n\t\t    interest which  vested in  the  Official
\n\t\t    Receiver revests  under sec.  37 of\t the
\n\t\t    Provincial\t Insolvency   Act   in\t the
\n\t\t    insolvent and  if on that date he is not
\n\t\t    alive, it  goes to\this heirs  under the
\n\t\t    law.<\/p><\/blockquote>\n<\/blockquote>\n
     Thus, the right of a coparcener to take by survivorship
\ncan be\tdefeated under\tcertain circumstances, as enumerated
\nin Mulla’s  Hindu Law  in the  passage extracted  above.  In
\nparagraph 587  of Mulla’s,  Hindu Law,\tit is stated that an
\nimpartible estate  is not held in coparcenary, though it may
\nbe joint  family property.  Indeed, this proposition has not
\nbeen disputed  by either  party in  this appeal.  When under
\ncertain circumstances  the right  of a coparcener to take by
\nsurvivorship can  be defeated, no exception can be taken, if
\nthe right of survivorship of junior members of an impartible
\nestate to succeed to it is defeated by the holder thereof by
\ndisposition by a will.<\/p><\/blockquote>\n
     The same  principle as  laid down\tin Raja\t Rao’s\tcase
\n(supra) has  been reiterated by the Privy Council in a later
\ndecision in  Protap Chandra  Deo v. Jagadish Chandra Deo, 54
\nIA 289.\t In this case it has been ruled by the Privy Council
\nthat the  holder of  an impartible Zamindari can alienate it
\nby will,  although the\tfamily is undivided, unless a family
\ncustom precluding him from doing so, is proved.\n<\/p>\n
     In Mirza  Raja Shri  Pushavathi Viziaram  Gajapathi Raj
\nManne Sultan  Bahadur v. Shri Pushavathi Visweswar Gajapathi
\nRaj,<\/a> [1964] 2 SCR 403 it has been held by this Court that it
\nmust be taken to be
\n1122<\/span>
\nsettled that  a holder\tof an impartible estate can alienate
\nthe estate  by gift  inter vivos,  or even by a will, though
\nthe family  is undivided;  the only limitation on this power
\nwould flow  from a family custom to the contrary or from the
\ncondition of  the tenure which has the same effect. The same
\nprinciple of law has been reiterated by this Court in Bhaiya
\nRamanuj Pratap\tDeo v.\tLalu Maheshanuj Pratap Deo,<\/a> [1982] 1
\nSCR 417. In view of the above Privy Council decisions and of
\nthe decisions of this Court, it must be held that the holder
\nof an impartible estate has the power of alienation not only
\nby transfer inter vivos, but also by a will, even though the
\ndisposition by\twill may  altogether  defeat  the  right  of
\nsurvivorship of the junior members of the family.\n<\/p>\n
     The only  question that  remains to be considered by us
\nrelates to  the alternative  plea of  the appellants that by
\nvirtue of  a family  custom the\t holder\t of  the  impartible
\nestate, with  which  we\t are  concerned,  had  no  power  of
\nalienation either by a transfer inter vivos or by a will. In
\nsupport of  this contention, our attention has been drawn on
\nbehalf of the appellants to a few correspondence between the
\noriginal appellant,  since deceased, and the political agent
\nof   the    Mohanpur   State.\tBefore\t considering   these
\ncorrespondence, a  few facts  are necessary to be stated. In
\n1938, the  former Ruler, that is, the father of the deceased
\nappellant, during  his life-time gifted certain villages and
\nproperties by way of jiwai (maintenance) to his younger son.
\nIn that\t connection, some  correspondence ensued between the
\nappellant and  the political agent of the State. Before such
\na gift\twas made  by way  of jiwai  to the  younger son, the
\noriginal appellant  by his  letter dated August 1, 1937 drew
\nthe attention  of the  political agent\tof the\tState to the
\nproposed jiwai\tworth, according  to him,  Rs.10,000. It was
\nstated in  the said  letter that despite his pointing out to
\nhis father  that the  proposal\tof  jiwai  was\ttoo  big  in
\nproportion to  the annual  revenue of  the State  which\t was
\nabout Rs.60,000, his father turned a deaf ear to his earnest
\nentreaties not\tto make such a jiwai. In that letter, it was
\nstated by  him that  “big jiwai was proposed contrary to the
\nprevailing practice  in all  the states\t and Talukas of this
\nAgency and the past precedent of the State”. In reply to the
\nsaid letter  the political agent, by his letter dated August
\n13, 1937,  informed the appellant that he would not sanction
\nany grant  which the  former Ruler  wished to  make  to\t his
\nyounger\t son   without\tany  previous  discussion  with\t the
\nappellant. The\tappellant also\thad written to his father on
\nJune 26,  1938, inter alia, stating that “whatever he wished
\nto give\t him in excessive in proportion to the income of the
\nState and  it is  unreasonable and  against the practice and
\nrules prevailing  in the  State”. The  political  agent,  it
\nappears, refused to sanction the proposed jiwai. Further, it
\nappears that the appellant
\n1123<\/span>
\nhad given  consent to  the execution by his father of a deed
\nof gift\t dated February\t 9, 1940  in favour  of his  younger
\nbrother for  his jiwai. The political agent granted sanction
\nto the\tsaid deed of gift, as it was with the consent of the
\nappellant.\n<\/p>\n
     The appellants have placed much reliance upon the above
\ndocumentary evidence in proof of their contention that there
\nwas a  family custom  prohibiting alienation by the Ruler of
\nthe State.  The correspondence\trelated only to the question
\nof granting jiwai to the younger son of the former Ruler. It
\nwould appear from the correspondence that the entire attempt
\nof the appellant was against the quantum of maintenance that
\nwas proposed  to be granted by the Ruler to his younger son.
\nIt was not the contention of the appellant that in view of a
\nfamily custom, the Ruler had no right of alienation, but his
\ncase was that in view of the annual revenue of the State the
\nquantum of the jiwai would be out of proportion. It was only
\non this ground that he protested against the proposed jiwai.
\nWe do  not think  that the  correspondence referred to above
\nprove any custom of inalienability of the impartible estate.\n<\/p>\n
     It is  submitted on  behalf of  the appellants  that as
\nthere was no instance of alienation till before the impugned
\ndeed of\t gift and the will, it should be presumed that there
\nwas a family custom of inalienability of the estate. More or
\nless, a similar contention was made before the Privy Council
\nin Protap Chandra Deo’s case (supra) that the absence of any
\ninstance of  a will purporting to dispose of the estate, was
\nitself sufficient  evidence of\tthe custom of inalienability
\nof the\testate. The  said contention  was overruled  by\t the
\nPrivy Council.\tThere must be some positive evidence of such
\na custom.  Mere absence\t of any\t instance of alienation will
\nnot be any evidence of custom. Moreover, as noticed already,
\nthe correspondence  which  are\tbeing  relied  upon  as\t the
\nevidence of  the alleged family custom of inalienability are
\nfar from  being such  evidence, for  the only  question that
\nformed the subject matter of all this correspondence related
\nto the\tpropriety of  the quantum  of jiwai. Accordingly, we
\nhold that the appellants have failed to prove that there was
\nany family  custom of inalienability of the estate. No other
\npoint has been urged in this appeal by either party.\n<\/p>\n
     For the  reasons aforesaid,  the judgment and decree of
\nthe High  Court are  affirmed and  this appeal is dismissed.
\nThere will, however, be no order as to costs in this Court.\n<\/p>\n
S.L.\t\t\t\t\t   Appeal dismissed.\n1124<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Thakore Shri Vinayasinhji (Dead) … vs Kumar Shri Natwarsinhji & Ors on 18 November, 1987 Equivalent citations: 1988 AIR 247, 1988 SCR (1)1110 Author: M Dutt Bench: Dutt, M.M. (J) PETITIONER: THAKORE SHRI VINAYASINHJI (DEAD) BY LRS. Vs. RESPONDENT: KUMAR SHRI NATWARSINHJI & ORS. DATE OF JUDGMENT18\/11\/1987 BENCH: DUTT, M.M. (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-69028","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThakore Shri Vinayasinhji (Dead) ... vs Kumar Shri Natwarsinhji & Ors on 18 November, 1987 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thakore-shri-vinayasinhji-dead-vs-kumar-shri-natwarsinhji-ors-on-18-november-1987\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thakore Shri Vinayasinhji (Dead) ... vs Kumar Shri Natwarsinhji & Ors on 18 November, 1987 - 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