State of U.P. Vs. Raj Kumar Rukmani
Raman Brahma  INSC 232 (11 September 1969)
11/09/1969 RAMASWAMI, V.
CITATION: 1971 AIR 1687 1970 SCR (2) 355
U.P. Zamindari Abolition and Land Reforms
Act, 1950 (1 of 1951), s. 23(1) and s. 79--A Gujaranama executed by Raja of an
impartible estate before passing of Act in favour of his brother whether a gift
or sale within meaning of s. 23(1)--Grantee whether entitled to rehabilitation
grant under s. 79.
The Raja of an impartible Estate in U.P.
executed certain Gujaranama deeds in 1949 including one in favour of the
respondent, his younger brother. After the U.P. Zamindari and Land Reforms Act,
1950 (U.P. Act 1 of 1951) came in force the respondent made an application
before the Rehabilitation Grants Officer under s. 79 of the Act. The
Rehabilitation Grants Officer held that the respondent was entitled to the
Grant and the order was upheld by the higher courts including the High Court.
In appeal by the State of U.P. before this Court it was contended that the
Gujaranama executed by the Raja in favour of the respondent was. a transfer by
way of sale or gift within the meaning of s. 23(1 ) of the Act and therefore
could not be recognised for purposes of assessing the amount of Rehabilitation
HELD: (i) After the decision of the Privy
Council in Shiba Prasad Singh's case it must be taken to be well- settled that
an estate which is impartible by custom cannot be said to be the separate or
exclusive property of the holder of the estate If the holder has got the estate
as an ancestral estate and he has succeeded to it by primogeniture it will be a
part of the joint estate of the undivided Hindu family. In the case Of an
ordinary joint family property the members o.f the family can claim four
rights: (1) the right of partition; (2) the right to restrain alienations by
the head of the family except for necessity; (3) the right of maintenance; and
(4) the right of survivorship. It is obvious from the very nature of the
property which is impartible that the first of these rights cannot exist. The
second is also incompatible with the custom of impartibility. The right of
maintenance and the right of survivorship, however, still remain and it is by
reference to these rights that the property, though impartible has, in the eve
of law, to be regarded as joint family property. The right of survivorship,
unlike mere spes successionis can be surrendered. The right of maintenance to
junior members out of an impartible estate is based on joint ownership of the
junior members of the family. [361 H--362 D] Shiha Prasad Singh v. Rant Prayag
Kumari Devi, 59 I.A. 331, Rani Sartaj Kuari v. Deoraj Kuari, 15 I.A. 51, First
Pittapur case. 26 I.A. 83, Collector of Gorakhpur v.
Ram Sunder Mal, 61 I.A. 286 and Baijnath
Prasad Singh v. Tej Bali Singh, 48 I.A. 195, applied.
Raja Yarlagadda Mallikarjuna Prasad Nayadu v.
Rain Yarlagadda Durga Prasad Nayadu, 27 I.A. 151 and Protap Chandra Deo v.
Jagadish Chandra Deo, 54 I.A. 289, referred to.
(ii) In the present case there was the
statement of the Raja in the Gujaranama deed that according to the law and
custom of the estate the 356 eldest son of the Raja becomes the owner of the
estate on the death the earlier Raja and that the "younger sons have right
to maintenance and they are given reasonable share of the estate in lieu of
right of maintenance. In view of this admission of the Raja it was not possible
to hold that the transfer of the properties in the Gujaranama deed was a
transfer by way of gift. It was also not a sale of the properties for there is
no money consideration. It was manifest that the transaction was by way of a
settlement to the respondent by the Raja in lieu of the right of maintenance of
the respondent which was obligatory upon the holder of impartible estate. The
Gujaranama was therefore not hit by the pro vision of s. 23 of the Act.
[363 D-F] (iii) The plea on behalf of the
appellant that the case must be remanded to the Rehabilitation Officer because
no issues were framed or evidence taken in the case had no force because there
were no questions of fact raised in the written statement on which evidence
could be taken. [364 A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 748 of 1966.
Appeal by special leave from the judgment and
order dated February 16, 1965 of the Allahabad High Court in Civil Revision No.
373 of 1963.
B. Sen and O.P. Rana, for the appellant.
Yogeshwar Prasad, Paras N. Tiwari,S.S.
Khanduja for B. Dutta, for the respondent.
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought by special leave from the judgment of the
Allahabad High Court dated February 16, 1965 in Civil Revision No. 373 of 1963
which was filed against the judgment of the Additional Civil Judge, Mirzapur dated
December 4, ]962 in Revenue Appeal No. 417 of 1961.
The respondent made an application before the
Rehabilitation Grants officer, Mirzapur under s. 79 of the U.P. Zamindari
Abolition and Land Reforms Act, 1950 to obtain the determination and payment of
rehabilitation grant to him. The case of the respondent was that he was the son
of the late Raja Sharda Mahesh Narain Singh Shah of Agori Barhar Raj, tehsil
Robertsganj in Mirzapur district.
Raja Anand Brahma Shah who was a Malgujar of
more than Rs. l0,000 annually executed Gujaranama deeds in favour of his
younger brothers and Iris mother separately in the year 1949. By these deeds,
certain villages were transferred by the raja to the Raj Kumar and the mother
in lieu of their right of maintenance. One of such Gujaranamas was executed by
Raja Anand Brahma Shah in favour of respondent, Raj Kumar Rukmini Raman Brahma
who is one of his younger brothers.
The document was executed on October 5, 1949
and registered on January 357 18, 1950. The application of the respondent
before the Rehabilitation Grants Officer was opposed 'by the appellant.
The. objection of the appellant was that the
transfer in favour of the respondent cannot be legally recognised in view of s.
23( 1 )(a) of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (U.P.
Act 1 of 1951 ) (hereinafter called the Act) for the purpose of assessing the
amount of rehabilitation grant. By his order dated January 28, 1961 the
rehabilitation Grants Officer held that the respondent was entitled to rehabilitation
grant. The appellant preferred an appeal against the order of the
Rehabilitation Grant Officer. The appeal was heard by the Additional Civil
Judge, Mirzapur, who rejected the objection of the appellant and dismissed the
appeal. The appellant took the matter in revision to the Allahabad High Court,
but the Revision Application was dismissed on February 16, 1965.
It is necessary at this stage to set out the
relevant provisions of the Act:
Section 3 (12):
"In this Act, unless there is anything
repugnant in the subject or context-- (12) 'Intermediary' with reference to any
estate means a proprietor, under-proprietor, sub-proprietor, thekedar,
permanent lessee in Avadh and permanent tenure-holder of such estate or part
thereof." Section 23:
"Transfer by way of sale or gift not to
be recognised-- (1 ) Notwithstanding anything contained in 'any law, no
transfer, by way of sale or gift, of any estate or part thereof-- (a) made on
or after the first day of July, 1948, shall be recognised for the purpose of
assessing the amount of rehabilitation grant payable to the intermediary;
(2) Nothing in sub-section (1 ) shall apply
to- (a) any sale made under order of a court in execution of any decree or
order for payment of money; or;
(b) any sale or gift made in favour of a
wakf, trust, endowment or society established wholly for charitable purposes,
unless the State Government in any particular case directs otherwise."
up(CI)/70--l1 358 Section 24(b)-- "Any contract or agreement made between
an intermediary and any person on or after the first day of July, 1948, which
has the effect, directly or indirectly,-- (a) (b) of entitling an intermediary
to receive on account of rehabilitation grant an amount higher than what he
would, but for the contract or agreement, be entitled to under this Act shall
be made and is hereby declared null and void." Section 73:
"There shall be paid by the State
Government to every intermediary (other than a thekedar), whose estate or
estates have been acquired under the provisions of this Act, a rehabilitation
grant as hereinafter provided;
Provided that, where on the date immediately
preceding the date of vesting, the aggregate land revenue payable by the
intermediary in respect of all his estates situate in the areas to which this Act
applies exceeded rupees ten thousand, no such grant shall be paid to him."
The principal question involved in this appeal is whether the Gujaranama deed
dated October 5, 1949 executed by Raja Anand Brahma Shah is a transfer by way
of sale or gift within the meaning of s. 23 (1 ) of the Act 'and cannot,
there,fore, be recognised for purpose of assessing the amount of Rehabilitation
Grant. was argued on behalf of the appellant that on a true construction of the
document the transaction must be taken to be a gift of the property by Raja
Anand Brahma Shah to the respondent. In our opinion there is no warrant for
this argument. The relevant portion of the Gujaranama deed dated October 5,
" ...... I Shri Raja Anand Brahma Shah
son of Shri Raja Sharda Mahesh Prasad Singh Shah of Agori Barhar Raj, Rampur
Estate Pargana Barhar, Tehsil Robertsganj, District Mirzapur, am the proprietor
of Angori Raj District Mirzapur which is an impartible estate. That according
to law and custom the eldest son of the Raja becomes the owner of the estate on
the death of the earlier Raja and the younger sons have a fight to maintenance
and they are given a reasonable share of the estate in lieu of the right of
maintenance so as to enable them to pass their life in accordance with their
359 status. The estate is under 'an obligation to provide' maintenance of this
type. Therefore it is obligatory upon me also to make some provision for the
maintenance of my younger brother Shri Rukmini Raman Brahma by giving him some
property. He also desires that some maintenance should be provided for him.
Therefore I out of my sweet will 'and
willingness do hereby execute this document in the terms following:
1. That from today's date I give the property
detailed below to my younger brother Shri Rukmini Raman Brahma in lieu of his
right of maintenance and I deliver to him the proprietary possession of the
properties aforementioned which include all rights pertaining to Sir land, self
cultivated land, water and forest rates, houses and buildings, shops, jungles,
2. That Shri Rukmini Raman Brahma and his
male lineal descendants will as per the custom of maintenance prevailing in my
estate, remain in possession of the said properties from generation to
generation and that in case of there being no male lineal descendants of the
transferee the property shall revert to the holder of the jagir.
3. That the erstwhile transferee for
maintenance shall be competent to transfer the property detailed below subject
to the condition that prior to sale it is and shall be obligatory on his part
to give intimation in this behalf to the erstwhile holder of the jagir by means
of a registered notice and if he be not willing to have the deed executed in
his favour the property may be given in sale to. any other person. Otherwise
the deed of sale shall be invalid and shall be liable to pre-emption.
4. That the transferee for maintenance shall
pay land revenue and other customary dues and taxes to the Government. The
jagir shall not be responsible for the payment of the same.
5. That the transferee for maintenance may
get his name entered in the revenue papers.
We shall have no. objection in this regard.
Since the decision of the Privy Council in
Shiba Prasad Singh v. Rani Prayag Kumari Devi(1) it must be taken to be well
settled that an estate which is impartible by custom cannot be said to be the
separate or exclusive property of the holder of the (1) 59 I.A. 331.
360 estate. If the holder has got the estate
as an ancestral estate and he has succeeded to it by primogeniture it will be a
part of the joint estate of the undivided Hindu family.
In the case of an ordinary joint family
property the members of the family can claim four rights: (l)the right of
partition; (2) the right to restrain alienations by the head of the family
except for necessity; (3) the right of maintenance and (4) the right of
survivorship. It is obvious from the very nature of the property which is
impartible that the first of these rights cannot exist. The second is also incompatible
with-the custom of impartibility as was laid down by the Privy Council in the
case of Rant Sartaj Kuari v. Deoraj Kuari(1) and the First Pittapur case(2).
The right of maintenance and the right of survivorship., however, still remain
and it is by reference to these rights that the property, though impartible
has, in the eye of law, to be regarded as joint family property.
The right of survivorship which can be
claimed by the members of the undivided family which owns the impartible estate
should not be confused with a mere spes successionis. Unlike spes succession
is, the right of survivorship can be renounced or surrendered. It was held by
the Judicial Committee in Collector of Gorakhpur v. Ram Sunder Mal(3), the:
right of maintenance to junior members out o,f an impartible estate was based
on joint ownership of the junior members of the family. In that case Lord
Blanesburgh after stating that the judgment of Lord Dunedin in Baijnath Prasad
Singh v. Tej Bali Singh(4) had definitely negatived the view that the decisions
of the Board in Sartaj Kuari's case ( 1 ) and the First Pittapur case ( 2 )
were destructive of the doctrine that an impartible zamindari could be in any
sense joint family property, went on to observe:
"One result is at length clearly shown
to be that there is no reason why the earlier judgments of the Board should not
be followed, such as for instance the Challapalli case (Raja Yarlagadda
Mallikariuna Prasad Nayadu v. Raja Yarlagadda Durga Prasad Nayadu(6) which
regarded their right to maintenance, however, limited, out of an impartible
estate as being based upon the joint ownership of the junior members of the
family, with the result that these members holding zamindari lands for
maintenance could still be considered as joint in estate with the zamindar in
possession." Lord Blanesburgh said:
"The recent decisions of the Board
constitute a further landmark in the judicial exposition of the question 'at
While the power of the holder of (1) 15 I.A.
51. (2) 26 I.A. 83.
(3) 61 I.A. 286, (4) 48 I.A. 195.
(5) 271.A. 151.
361 an impartible raj to dispose of the same
by deed (Sartaj Kuari's case(1) or by will (the First Pittapur case(") and
Protap Chandra Deo v. Jagadish Chandra Deo(3) remains definitely established,
the right of the junior branch to succeed by survivorship to the raj on the
extinction of the senior branch has also been definitely and emphatically
re-affirmed. Nor must this right be whittled away. It cannot be regarded as
merely visionary." As pointed out in Baijnath Prasad Singh's case(4) when
before the Allahabad High Court the junior members of a great zamindari enjoy a
high degree of consideration, being known as babus, the different branches
holding babuana grants out of the zamindari. Their enjoyment of these grants is
attributable to their membership of the joint family, and until the decisions
above referred to beginning in 1888 supervened, they had no reason to believe
that their rights of succession were being imperilled by their estrangement
from the zamindar in possession." In the present case there is the
statement of Raja Anand Brahma Shah in the Gujaranama deed that according to
the law and custom of the estate, the eldest son of the Raja becomes the owner
of the estate on the death of the earlier Raja and that the "younger sons
have right to maintenance and they are given reasonable share of the estate in
lieu of right of m'aintenance". In view of this admission of Raja Anand
Brahma Shah it is not possible to hold that the transfer of the properties in
the Gujaranama deed was a transfer by way of gift. It is also not possible to
contend that it was a sale of the properties for there is no money
consideration. It is manifest that the transaction is by way of a settlement to
the respondent by Raja Anand Brahm, a Shah in lieu of the right of maintenance
of the respondent which is obligatory upon the holder of impartible estate.
In our opinion, the Gujaranama deed dated
October 5, 1949 is not hit by the provision of s. 23 of the Act and the
argument of the appellant on this aspect of the case must be rejected.
It was contended on behalf of the appellant
that the case should be remanded to the Rehabilitation Grants Officer on
account of certain procedural irregularities.
It was pointed out that the Rehabilitation
Grants Officer did not follow the provisions of the Civil Procedure Code by
treating the application under s. 79 as a plaint and the objection of the State
Government as a written statement.
It was said that the Rehabilitation Grants
Officer was bound to. Frame proper issues and to take evidence of the parties
(1) 15 I.A. 51.
(2) 26 I.A. 83.
(3) 54 I.A. 289.
362 on those issues as in the civil suit. But
no case has been made out for remand because the appellant has not denied in
the written statement that there was the customary right of maintenance of the
junior members of the family of Raja Anand Brahma Shah. No disputed question of
fact was raised on behalf of the appellant before the Rehabilitation Grants
Officer, the award of the Rehabilitation Grants Officer was challenged only on
a question of law.
For these reasons we hold that this appeal
fails and must be dismissed, with costs.
G.C. Appeal dismissed.