Bhaiya Ramanuj Pratap Deo Vs. Lalu
Maheshanuj Pratap Deo & Ors [1981] INSC 149 (26 August 1981)
MISRA, R.B. (J) MISRA, R.B. (J) DESAI, D.A.
KOSHAL, A.D.
CITATION: 1981 AIR 1937 1982 SCR (1) 417 1981
SCALE (3)1425
CITATOR INFO :
R 1982 SC 887 (20,22) R 1988 SC 247 (20)
ACT:
Hindu Succession Act, 1956, sections 4 and 6,
scope of- Whether the provisions of section 6 overrides the customary Rule of
primogeniture Bihar Land Reforms Act, section 6, applicability of-Chota Nagpur
Encumbered Estates Act, 1876, section 12A, conditions to be fulfilled-Indian
Registration Act, sections 17 and 49, evidentially value of unregistered
documents of.
HEADNOTE:
Bhaiya Rudra Pratap Deo was the holder of an
impartible estate, known as Nagaruntari estate, in the district of Palamau. The
succession to the estate was governed by the rule of lineal primogeniture.
Under the said rule the eldest male member of the eldest line was to succeed to
the estate while the junior members were entitled only to maintenance grants
subject to resumption on extinction of the male line of the eldest branch.
Rudra Pratap Deo Singh had a younger brother Harihar Pratap Deo who died in a
state of jointness with his brother Rudra Pratap Deo in 1934 leaving behind his
son Lalu Maheshanuj Pratap Deo alias Nila Bacha, and one other step son who
also died in 1937 unmarried. Bhaiya Rudra Pratap Deo executed a deed of
maintenance (Khorposh) on 14th April, 1952 in respect of eight villages. A
dispute arose between the parties in respect of the agricultural plots of
village Sigsigi. The proceedings under section 145 Crl. P.C.
ended in favour of Nila Bacha. Bhaiya Rudra
Pratap Deo, therefore, filed a civil suit No. 16 of 1955, on the grounds that
(a) a fraud was committed by including two villages, namely, Sigsigi and
Patihari in the formal deed of khorposh dated 14th April, 1952 and (b) that F
the khorposh grants are void under section 12A of the Chota Nagpur Encumbered
Estates Act and the provisions of the Bihar Land Reforms Act, 1950 and
therefore, no title accrued to the defendant on that basis. The suit was
contested by the defendant on the grounds amongst others: The Nagaruntari
estate was never an impartible estate governed by the rule of primogeniture,
but in its origin it was a non-heritable Ghatwala Jagir and it was subsequently
made heritable and raised to the status of a revenue paying estate and thus it
became an ordinary joint family property partible amongst the members; there was
no fraud committed by any one; and with the enforcement of the Hindu Succession
Act, 1956, being a co-sharer with the plaintiff, he was entitled to remain in
possession of all the eight villages covered by the khorposh deed till
partition was made.
The learned Subordinate Judge held that by
the khorposh deed the defendant was given all the eight villages, but he did
not acquire any interest in the 418 said land as the deed was against the
provisions of section 12A of the Chota Nagpur Encumbered Estates Act and the
Chota Nagpur Tenancy Act; that the Nagaruntari Estate was an impartible estate
governed by the rule of primogeniture but it ceased to be so after the
enforcement of the Hinda Succession Act, 1956 and since Bhaiya Rudra Pratap Deo
died, during the pendency of the suit and after this Act had come into force,
the succession would be governed by survivor ship and as such the legal
representatives of the plaintiff as well as the defendant would succeed. The
first appellate court held that: (a) in as much as the khorposh grant was not
made with the sanction of the Commissioner, the grant was void under section
12A of the Chota Nagpur Encumbered Estates Act; and (b) because the possession
of the ex- proprietor with respect to the Bakasht land became that of raiyat
under the State of Bihar and raiyati right was not transferable without a
registered document, the possession of the defendant was on the basis of a void
agreement; and (c) that after the death of Bhaiya Rudra ' Pratap Deo, section 6
of the Hindu Succession Act became applicable and both appellants and the
defendants were entitled to succeed as co-sharers.
The second appeal by the plaintiffs was
partly allowed inasmuch as the High Court found that the heirs of Rudra Pratap
Deo were entitled to get a decree for possession of the suit land jointly with
the sole defendant as also for mense profits for their share, i.e. One half in
addition to the entire mense profits to which Rudra Pratap Deo was entitled in
his life time. Both the parties have come up in appeal to this Court against
the judgment and decree of the High Court to the extent it went against them.
Dismissing the plaintiff's appeal and
allowing that of the defendant, the Court ^
HELD: 1. A bare perusal of Section 4 of the Hindu
Succession Act, 1956 indicates That any custom or usage as part of Hindu law in
force will cease to have effect after the enforcement of Hindu Succession Act
with respect to any matter for which provision is made in the Act. If rule of
lineal primogeniture in Nagaruntari estate is a customary one it will certainly
cease to have effect, even though it was part of Hindu law. [426 D.E]
2. Section S(ii) of the Hindu Succession Act,
1956 protects an estate which descends to a single heir by the terms of any
covenant or agreement entered into or by the terms of any enactment inasmuch as
Hindu Succession Act is not applicable to such an estate. Section 5(ii) stands
as an exception to section 4 of the Act. [426 G-H] The rule of lineal
primogeniture in the instant case, is not a statutory rule but a customary rule
and therefore, it is not saved by section 5(ii) of the Hindu Succession Act.
[426 H,427 A]
3. Section 6 of the Bihar Land Reforms Act
only contemplates that the land will be deemed to be settled by the State with
such intermediary and he shall be entitled to retain possession thereof and
hold it as a raiyat under the state having occupancy rights in respect of such
land subject to payment of fair and equitable rent. But if the intermediary was
in possession in a representative capacity on behalf of the other coparceners
as a necessary corollary 419 the land will be deemed to be settled with all those
persons on whose behalf A one particular intermediary was in khas possession.
Consequently if the possession of Bhaiya Rudra Pratap Deo was on behalf of
other coparceners the land will be deemed to be settled with all those
coparceners and they shall all become raiyats. Here, the joint status of the
family continued and therefore, after the death of Bhaiya Rudra Pratap Deo, his
interest developed on other coparceners as well. [429 C-F] 4: 1. Admittedly the
defendant was a member of a joint Hindu family. Even in an impartible estate he
was entitled to maintenance and the land in dispute had admittedly been given
to the defendants by the impartible estate holders.
This possession therefore, cannot be taken
the possession of a tresspasser. [431 A] 4: 2. Section 12A of the Chota Nagpur
Encumbered Estates Act, 1876 would be attracted only when possession and
enjoyment of the property is restored under the circumstances mentioned in the
first or the third clause of section 12. The onus to prove that the conditions
contemplated by section 12 were satisfied lay on the plaintiff, which he failed
to do. [430 D-E] 4: 3. The maintenance deed can be looked into for collateral
purpose of ascertaining the nature of possession.
Khorposh (maintenance) deed is a document which
requires registration within the meaning of section 17 of the Indian
Registration Act and as the document was not registered it cannot be received
as evidence of any transaction affecting such property. Proviso to section 49,
however, permits the use of the document, even though unregistered, as evidence
of any collateral transaction not registered to be effected by registered
instrument. [430F-H] 5 (a) A holder of an impartible estate can alienate the
estate by gift intervivos or even by 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. Therefore, it is
not correct to say that the impartible estate would go to holder s successors
alone and not to the other members or the family by survivorship. [431 B-C, 435
C-D] (b) It must be taken to be well settled that the 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 by primogeniture, it will be a part of
the joint estate of the undivided family. [433 D-E] In the case of an ordinary
joint family property the members of the family can claim four rights: (1) the
right to partition, (2) the right to restrain alienation by the head of the
family except for necessity, (3) the right to maintenance, and (4) the right of
survivorship. It is obvious that from the very nature of the property which is
impartible the first three rights cannot exist. The fourth right viz., the
right of survivorship, however, still remains and it is by reference to this
right that the property, though impartible, has in the eyes of law, to be
regarded as joint family property. The right of survivorship which can be claim
420 ed by the members of the undivided family which owns the impartible estate
should not be confused with mere spec successionis. Unlike spec successionis
the right of survivorship can be renounced or surrendered. [433 G-H, 434 A-B]
Rajah Velugoti Kumara Krishna Yachendra Varu and Ors.
v. Rajah Velugoti Sarvagna Kumara Krishna
Yachendra Varu and Ors [1970] 3 SCR 88: Raja Rama Rao v. Raja of Pittapur,
[1918] L.R. 45 I A. 148; Hargovind Singh v. Collector of Etah, A I R. 1937 All
377 and Raja Rao Venkata Surya Mahipati Rama Krishna Rao Bahadur v. Court of
Wards, [1899] L.R. 26 I.A. 83, discussed and distinguished.
Mirza Raja Shri Pushavathi Viziaram Gajapathi
Raj Manne Sultan Bahadur and ors. v. Shri Pushavathi Visweswar Gajapathi Raj
and ors. [1964] 2 SCR 403, applied.
Chinnathayal alias Veeralakshmi v. Kulasekara
Pandiya Naicker and Anr. [1952] SCR 241, referred to.
6. The overwhelming evidence on the record,
in the instant case, categorically proves: (a) that the disputed estate was an
impartible estate till the death of the original plaintiff in 1957; and (b) it
is open to a co- sharer to remain in possession of the joint property and the
proper remedy for the plaintiff in such case is to file a suit for partition
where the equities of the parties would be adjusted and not a suit for
possession of plots of one village and for mesne profits. [436 B, 437 B-D]
Collector of Bombay v. Municipal Corporation of the City of Bombay and Ors.
A.I.R. 1951 SC 469, held inapplicable.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 209 & 2280 of 1970.
CA. No. 209/70 arising out of certificate
& CA. No. 2280/70 arising out of special leave from the common judgment and
decree dated the 28th February, 1968 of the Patna High Court in Appeal from
Appellate Decree No. 1055 of 1962, S.C. Misra and U.P. Singh, for the Appellant
in C.A.
No. 209/70 and for the Respondent in CA. No.
2280/70.
KK. Sinha, S.K Sinha and M.L. Chibber for the
Appellant in CA. 2280/70 and for the Respondent in C.A. 209 of 1970.
The Judgment of the Court was delivered by
MISRA J. These two connected appeals are directed against a t common judgment
dated 28th February, 1968 of the Patna High Court, the first one by certificate
and the second by special leave.
421 Bhaiya Rudra Pratap Deo was the holder of
an impartible A estate, known as Nagaruntari estate, in the district of
Palamau. The succession to the estate was governed by the rule of lineal
primogeniture. Under the said rule the eldest male member of the eldest line
was to succeed to the estate while the junior members of the family were
entitled only to maintenance grants subject to resumption on extinction of an
heir in the male line of the eldest branch.
It appears that the estate was accorded
protection under the Chota Nagpur Encumbered Estates Act, 1876, on the
application of Bhaiya Rudra Pratap Deo as per notification dated 17th March
1932 published in the Bihar Gazette dated 23rd March, 1932 and after
liquidation of debt it was released from the operation of Chota Nagar
Encumbered Estates Act in October 1945. Eventually the estate vested in the
State of Bihar under the Bihar Land Reforms Act, 1950 in pursuance of a
notification dated 5th of November, 1951.
Harihar Pratap Deo, who was the younger
brother of Bhaiya Rudra Pratap Deo, had died in a state of jointness with his
brother Bhaiya Rudra Pratap Deo in 1934 leaving behind his son Lalu Maheshanuj
Pratap Deo alias Nila Bacha, and one other step son who also died in 1937
unmarried. Lalu Maheshanuj Pratap Deo demanded land for khorposh (maintenance)
from Bhaiya Rudra Pratap Deo in 1950. Bhaiya Rudra Pratap Deo executed a deed
of maintenance on 14th of April, 1952 in respect of eight h villages in favour
of Lalu Maheshanuj Pratap Deo. A dispute, however, arose between the parties in
respect of the plots of village Sigsigi which culminated in a proceeding under
section 144 Cr. P.C. The proceedings were, however, later converted into
proceedings under section 145 Cr. P.C. which ended in favour of Lalu Maheshanuj
Pratap Deo on 4th of July, 1955. Bhaiya Rudra Pratap Deo feeling aggrieved by
the order filed a suit which has given rise to the present appeals and which
was later on numbered as suit No. 16 of 1955, against Lalu Maheshanuj Pratap Deo
alias 'Nila Bacha' in respect of the agricultural plots of village Sigsigi and
the grains in the custody and control of the police, Bisrampur, district
Palamau.
The case of the plaintiffs as follows: After
the vesting of the estate in the State of Bihar the defendant approached him
with a request that the plaintiff should give him the villages Bhojpur,
Jaungipur, Chitri, Rohila, Bhandar and Khundra but the plaintiff declined to do
so as section 12A of the Chota Nagpur Encumbered Estate Act and the provisions
of the Bihar Land Reforms Act stood as a bar.
422 The defendant, however, implored and
wanted to take a chance and try his luck. On the beseechment of the defendant
the plaintiff allowed him six villages only, namely Bhojpur, Jaungipur Chitri,
Rohila, Bhandar and Khundra subject to acceptance of the State of Bihar. There
was neither any proposal for villages Sigsigi and Patihari nor had the
plaintiff ever agreed to give these two villages to the defendant. A formal
unstamped and unregistered deed of Khorposh(maintenance) was no doubt created
in respect of only six villages on 14th of April, 1952 subject to the approval
of the authorities. The defendant, however, in collusion with the plaintiff's
employees and ex-employees and without the knowledge and information of the
plaintiff managed to use the plaintiff's signature and manufactured evidence to
show that the two villages Sigsigi and Patihari had also been included in
Khorposh grant and included these two villages in the formal deed dated 14th of
April, 1952 in collusion with the typist and designing persons by perpetrating
fraud on the plaintiff.
When the plaintiff came to know of the fraud
and fabrication of the defendant he lodged protest before the authorities and
the authorities refused to accept the plea of khorposh and they ordered the
villages to be included in the compensation list of the plaintiff and the rent
of all the sirjot lands was fixed in favour of the plaintiff. Thus, no khorposh
grant remains even in respect of the six villages and such grants, if any, are
void under section 12A of the Chota Nagpur Encumbered Estates Act and the
provisions of the Bihar Land Reforms Act. Even assuming for the sake of
argument that the two villages Sigsigi and Patihari were included in the deed
dated 14th of April, 1952, the transfer is void ab initio and no title accrued
to the defendant on that basis.
At the time of proceedings under section 145
Cr. P.C.
paddy crops grown by the plaintiff were
standing and on the petition of the plaintiff the same were harvested by the
police. Subsequent cultivation was also done through the police, Bisarampur and
the plaintiff is entitled to all the grains in the custody of the police.
On these allegations the plaintiff sought a
declaration that the land in dispute, detailed in Schedule A, situated in
village Sigsigi was the khasjot land of the plaintiff, that the defendant had
no concern therewith and that he (the plaintiff ) was entitled to the grain or
the value thereof as detailed in Schedule B. The plaintiff also claimed a
relief for possession over the disputed plots 423 and the grain or the value
thereof. A relief for mesne profits to be A ascertained in subsequent
proceedings was also claimed.
Bhaiya Rudra Pratap Deo, the plaintiff, died
during the pendency of the suit and his two sons and four widows got themselves
substituted in his place. His eldest son, Bhaiya Ramanuj Pratap Deo filed a
petition before the Trial Court for substitution in place of his deceased
father alleging that the Nagaruntari Estate was an impartible estate governed
by the rule of lineal primogeniture under which the eldest son alone is
entitled to succeed his father. His prayer was allowed. Subsequently the second
son of Bhaiya Rudra Pratap Deo and his widows filed a petition for being
substituted. The Sub-Judge impleaded all these persons provisionally as
plaintiffs ordering to strike out an issue as to which of them was or were
entitled to the fruits of the litigation, if eventually the court decided the
suit as against the defendant. The conduct of the suit was given to plaintiff
No. I under the provisions of rule 11, order 1 C.P.C.
The suit was contested by the defendant on
the following grounds amongst others: The Nagaruntari estate was never an
impartible estate governed by the rule of lineal primogeniture but in its
origin it was a non-heritable Ghatwala Jagir and it was subsequently made
heritable and raised to the status of a revenue paying estate and thus it
became an ordinary joint family property partible amongst the members. His
father died in a state of jointness with Bhaiya Rudra Pratap Deo sometime in
1934 when he was only four years old and he was living under the guardianship
of his uncle. He was made to carry an impression, due to propaganda made by his
uncle Bhaiya Rudra Pratap Deo that Nagaruntari estate was an impartible estate
and being under this wrong impression he subsequently filed an application
against his uncle in 1950 claiming khorposh grant of 22 villages including
village Sigsigi from out of Nagaruntria estate and also partition of the
self-acquired property of his grand-father. That application was, however,
rejected.
The Nagaruntari estate later on vested in the
State of Bihar under the Bihar Land Reforms Act. Thereafter Bhaiya Rudra Pratap
Deo of his own accord executed a khorposh deed in his favour in respect of
eight villages including Sigsigi and got it typed in his house and sent it to
him with a direction to take possession of the eight villages and accordingly
he took possession of the same. The defendant denied that he had fraudulently
got Sigsigi and Patihari villages inserted in the Khorposh deed or that this
deed was illegal. The defendant 424 claimed that he was a co-sharer with the
plaintiff and was entitled to remain in possession of all the eight villages
covered by the Khorposh deed till partition was made, The Subordinate Judge
held that by the khorposh deed Bhaiya Rudra Pratap Deo had in fact given to the
defendant in khorposh eight villages including village Sigsigi but the
defendant did not acquire any interest in the said land on the basis of the
khorposh deed as the same was against the provisions of section 12A of the
Chota Nagpur Encumbered Estates Act and the Chota Nagpur Tenancy Act; that
Nagaruntari estate was an impartible estate governed by the rule of lineal
primogeniture but it ceased to be so after the enforcement of the Hindu
Succession Act, 1956 in June 1956 and since Bhaiya Rudra Pratap Deo died after
this Act came into force the succession to the estate would be governed by
survivorship as contemplated by section 6 of the Hindu Succession Act. As such
the plaintiffs, as well as the defendant would succeed. The defendant is thus
entitled to remain in possession of the said property as one of the co- owners
and the plaintiffs could not claim an exclusive khas possession till the matter
is decided in a partition suit.
On these findings he dismissed the suit
Feeling aggrieved by the decision heirs and legal representatives of Bhaiya
Rudra Pratap Deo, the deceased plaintiff, preferred an appeal. On appeal the
District Judge confirmed the findings of the Trial Court. He, however, held
that the grant of khorposh by Rudra Pratap Deo after the release of the estate
from the management of the Chota Nagpur Encumbered Estates Act was void under
section 12A of the Act as the khorposh grant was not made with the sanction of
the Commissioner and also because the possession of the ex-proprietor with
respect to the Bakasht land became that of a raiyat under the State of Bihar
and the raiyati right was not transferable without a registered document. Thus.
the possession of the defendant was on the
basis of a void document. The learned Judge further held that the document of
khorposh being unregistered was not admissible in evidence but it could be used
for a collateral purpose of explaining the nature of possession; that the
defendant being a minor member of the family was put in possession of the
property covered by it by the holder of the estate and his possession was as
khorposh-holder (maintenance holder) and not as a trespasser and he was not
liable to be evicted.
The Nagaruntari estate was found to be an
impartible estate where succession was governed by 425 the rule of lineal
primogeniture. But after the death of Bhaiya A Rudra Pratap Deo section 6 of
the. Hindu Succession Act became applicable and the devolution of the property
would not be governed by the rule of lineal primogeniture but by the ordinary
rule of succession as is provided under the Hindu Succession Act. It was also
held that Rudra Pratap had died in a state of jointness with the defendant and
after Hindu Succession Act came into force the Nagaruntari estate became an
ordinary joint family property of the parties and that the possession of the
defendant was as a co-sharer. On these findings the appeal filed by the
plaintiffs was dismissed by the District Judge.
Undaunted, the plaintiffs preferred a Second
Appeal in the High Court which was partly allowed inasmuch as the High Court
found that the heirs of Rudra Pratap were entitled to get a decree for
possession of the suit land jointly with the sole defendant as also for mesne
profits for their share, that is, one-half in addition to the entire mesne
profits to which Rudra Pratap was entitled in his lifetime.
Both the parties have come up in appeal to
this Court against the judgment and decree of the High Court to the extent it
went against them.
First we take up appeal No. 209 of 1970 filed
by Bhaiya Ramanuj Pratap Deo, heir and legal representative of deceased
plaintiff.
Mr. S C. Misra assisted by Mr. U.P. Singh
raised a number of contentions. His first contention is that the rule of lineal
primogeniture survived even after the enforcement of the Hindu Succession Act.
To appreciate the contention it will be necessary to examine the relevant provisions
of the Act. Section 4(1) (a) of the Act lays down:
"4. (1) Save as otherwise expressly
provided in this Act- G (a) any text, rule or interpretation of Hindu Law or
any custom or usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with respect to any matter
for which provision is made in this Act." 426 Section 6 of the Act
provides:
"6. When a male Hindu dies after the
commencement of this Act, having at the time of his death in interest in a
Mitakshara coparcenary property, his interest in the property shall devolve by
survivorship upon the surviving members of the coparcenary and not in
accordance with this Act:
Provided that, if the deceased had left him
surviving a female relative specified in class I of the Schedule or a male
relative, specified in that class who claims, through such female relative, the
interest of the deceased in the Mitakshara coparcenary property shall devolve
by testamentary or intestate succession, as the case may be, under this Act and
not by survivorship." A bare perusal of section 4 would indicate that any
custom or usage as part of Hindu law in force will cease to have effect after
the enforcement of Hindu Succession Act with respect to any matter for which
provision is made in the Act. If rule of lineal primogeniture in Nagaruntari
estate is a customary one it will certainly cease to have effect, even though
it was part of Hindu law.
Faced with this situation the learned counsel
for the appellant invokes section 5 (ii) of the Hindu Succession Act. In so far
as it is material for the present discussion it reads:
"5. This Act shall not apply to:- (i)
... ... ... ... ...
(ii) any estate which descends to a single
heir by the terms of any covenant or agreement entered into..
or by the commencement of this Act."
This section protects an estate which descends to a single heir by the terms of
any covenant or agreement entered into or by the terms of any enactment in as
much as Hindu Succession Act is not applicable to such an estate.
This section stands as an exception to
section 4 of the Act referred to above.
It is urged by Shri Misra that the rule of
lineal primogeniture in the instant case is a statutory rule and not a
customary rule and 427 therefore it is saved by section 5 (ii) of the Hindu Succession
Act. A In support of his contention he placed reliance upon Bengal Regulation
10 of 1800. Bengal Regulation 10 of 1800 reads as under:
(i) By Regulation 11, 1798 the estates of
proprietors of land dying intestate are declared liable to be divided among the
heirs of the deceased agreeably to the Hindu or Muhamdan laws.
A custom, however, having been found to
prevail in the jungle Mahals of Midnapore and other districts by which the
succession to the landed estates invariably devolves to a single heir without
the division of the property.. the Governor General-in-Council has enacted the
following rule to be in force in the Provinces of Bengal, Bihar and Orissa from
the date of its promulgation.
Regulation 11, 1798 (2) shall not be
considered to supersede or affect any established usage which may have obtained
in the jungle Mahals of Midnapore and other districts, by which the succession
to landed estates, the proprietor of which may die intestate, has hitherto been
considered to devolve to a single heir, to the exclusion of the other heirs of
the deceased.
In the Mahals in question the local custom of
the country shall be continued in full force as heretofore, and the Courts of
Justice be guided by it in the decision of all claims which may come before
them to the inheritance of landed property situated in those Mahals." The
following propositions are clearly deducible from this Regulation: F (a) The
Regulation takes note of an earlier Regulation (Regulation No. 11 of 1798)
according to which the estate of a proprietor of land dying intestate was to be
divided amongst his heirs according to his personal law.
(b) It further notes that a custom had been
found to pre vail in certain areas by which land devolved on a single heir.
(c) It then lays down that such a custom
would not be deemed to have been superseded by Regulation No.
11 428 of 1798 and that in the said areas
such custom shall be rule of decision.
This analysis of the Regulation leads to the
further preposition that it did not by its own force declare that any estate
would descend to a single heir. All that it did was to keep alive the custom
sanctioning the rule of primogeniture entailing impartibility of the estate.
The rule of custom was thus recognised as such and no estate by the terms of
the Regulation itself was made to descend to a single heir. In this view of the
matter clause (ii) of section 5 of the Hindu Succession Act does not cover such
a custom.
Alternatively it was argued that even if the
rule of lineal primogeniture did not survive after the enforcement of the Hindu
Succession Act the suit land will be deemed to be settled with the plaintiff
under section 6 of the Bihar Land Reforms Act and the plaintiff became the
exclusive owner of the suit land. Section 6 of the Bihar Land Reforms Act,
1950, insofar as it is material for this case reads:
6. (1) On and from the date of vesting all
lands used for agricultural or horticultural purposes, which were in 'khas'
possession of an intermediary on the date of , such vesting, including:- (a)
(i) proprietor's private lands let out under a lease for a term of years or
under a lease from year to year, referred to in Sec. 116 of the Bihar Tenancy
Act, 1885 (8 of 1885), (ii) landlord's privileged lands let out under a
registered lease for a term exceeding one year or under a lease, written or
oral, for a period of one year or less, referred to in Sec. 43 of the Chota
Nagpur Tenancy Act, 1908 (Ben.
Act 6 of 1908), (b) lands used for
agricultural or horticultural purposes and held in the direct possession of a
temporary lease of an estate or tenure and cultivated by himself with his own
stock or by his own servants or by hired labour or with hired stock, and 429
(c) lands used for agricultural or horticultural purposes forming the subject
matter of a subsisting mortgage on the redemption of which the intermediary is
entitled to recover 'khas' possession thereof; shall subject to the provisions
of Sec. 7 A and 7 be deemed to be settled by the State with such intermediary
and he shall be entitled to retain possession thereof and hold them as a
'raiyat' under the State having occupancy rights in respect of such lands
subject to the payment of such fair and equitable rent as may be determined by
the Collector in the prescribed manner." This section only contemplates
that the land will be deemed to be settled by the State with such intermediary
and he shall be entitled to retain possession thereof and hold it as a raiyat
under the State having occupancy rights in respect of such land subject to
payment of fair and equitable rent. But if the intermediary was in possession
in a representative capacity on behalf of the other coparceners, as a necessary
corollary the land will be deemed to be settled with all those persons on whose
behalf one particular intermediary was in khas possession.
Consequently if the possession of Bhaiya
Rudra Pratap Deo was on behalf of other coparceners the land will be deemed to
be settled with all those coparceners and they shall all become raiyats.
It is nobody's case that there has been any
partition between the plaintiff and the defendant. The joint status of the
family continued and, therefore, after the death of Bhaiya Rudra Pratap Deo his
interest devolved on other coparceners as well. F It was next contended for the
appellant that the defendant got the land under a khorposh deed which was void
ab initio and, therefore, the status of the defendant was that of a trespasser
and he was liable to ejectment on the suit of the plaintiff. According to the
appellant the khorposh deed was void for two reasons: firstly because there was
no sanction of the Commissioner for the deed as contemplated by section 12 A of
the Chota Nagpur Encumbered Estates Act, 1876; secondly because the deed was
neither stamped nor registered, In order to appreciate the first reason it is
pertinent to read section 12 A insofar as it is material for the purpose of the
case:
"12 A (1) When the possession and
enjoyment of 430 property is restored, under the circumstances mentioned in the
first or the third clause of section 12, to the person who was the holder of
such property when the application under section 2 was made, such person shall
not be competent, without the previous sanction of the Commissioner,- (a) to
alienate such property, or any part thereof, in any way, or (b) to create any
charge thereon extending beyond his lifetime.
(2) ... ... ... ...
(3) Every alienation and charge made or
attempted in contravention of sub-section (I) shall be void." Section 12 A
would be attracted only when possession and enjoyment of the property is
restored under the circumstances mentioned in the first or the third clause of
section 12. It was for the plaintiff to show that the conditions contemplated
by section 12 were satisfied, which he has failed to do As regards the second
reason, the argument is based on section 17 read with section 49 of the Indian
Registration Act. Section 17 of the Registration Act enumerates the documents
requiring registration. Section 49 of the Registration Act provides that no
document required by section 17 or by any provision of the Transfer of Property
Act, 1882 to be registered shall be (a) affect any immovable property comprised
therein, (b) .. (c) be received as evidence of any transaction affecting such
property or conferring such power, unless it has been registered.
Khorposh (maintenance) deed is a document
which requires registration within the meaning of section 17 of the Indian
Registration Act and as the document was not registered it cannot be received
as evidence of any transaction affecting such property. Proviso to section 49,
however, permits the use of the document, even though unregistered, as evidence
of any collateral transaction not required to be effected by registered
instrument. In this view of the legal position the maintenance deed can be
looked into for collateral purpose of ascertaining the nature of possession.
431 Admittedly the defendant was a member of
a joint Hindu family. Even in an impartible estate he was entitled to
maintenance and the land in dispute had admittedly been given to the defendant
by the impartible estate holder. His possession, therefore, cannot be taken to
be the possession of a trespasser and the High Court in our opinion has erred
in branding the defendant as a trespasser.
This leads us to the last, but not the least
in importance, contention raised on behalf of the appellants.
According to Shri S.C.Misra the original
plaintiff being holder of an impartible estate, his estate would go to his
successors alone and not to the other members of the family by survivorship.
The learned counsel relied upon the following cases in support of his
contention: Rajah Velugoti Kumara Krishna Yachendra Varu & Ors. v. Rajah
Velugoti Sarvagna Kumara Krishna Yachendra Varu and Ors., Raja Rama Rao v. Raja
of Pittapur, Hargovind Singh v. Collector of Etah, Raja Rao Venkata Surya
Mahipati Rama Krishna Rao Bahadur v. Court of Wards.
In Rajah Velugoti Kumara Krishna Yachendra
Varu and Ors. v. Rajah Velugoti Sarvagna Kumara Krishna Yachendra Varu and
Ors., (supra) the first and the foremost case relied upon, a contention was
raised on behalf of the plaintiff that the property of the impartible estate
was held in coparcenary as joint family property and became partible amongst
the members once it lost its character of impartibility. In other words the
contention was that the junior members had a present interest in the impartible
estate and were entitled to a share in the estate once impartibility was
removed. This argument was repelled and this Court observed:
"In our opinion there is no
justification for this argument. The law regarding the nature and incidents of
impartible estate is now well settled. Impartility is essentially the creature
of custom. The junior members of a joint family in the case of ancient
impartible joint family estate take no right in the property by birth, and
therefore, have no right of partition having regard to the very nature of the
estate that is impartible. Secondly, they have 432 no right to inerdict
alienation by the head of the family either for necessity or otherwise."
This Court, however, further exposed the legal position in these words:
"To this extent the general law of
Mitakshara applicable to joint family property has been modified by custom and
an impartible estate, though it may be ancestral joint family estate, is
clothed with the incidents of self-acquired and separate property to that
extent. The only vesting of the incident of joint family property, which still
attaches to the joint family impartible estate is the right of survivorship
which, of course, is not inconsistent with the custom of impartibility. For the
purpose of devolution of the property, the property is assumed to be joint
family property and the only right which a member of the joint family acquires
by birth is to take the property by survivorship but he does not acquire any
interest in the property itself. The right to take by survivorship continues
only so long as the joint family does not cease to exist and the only manner by
which this right of survivorship could be put an end to is by establishing that
the estate ceased to be joint family property for the purpose of succession by
proving an intention, express or implied, on behalf of the junior members of
the family to renounce or surrender the right to succeed to the estate."
The observations extracted above are self-explanatory and do not support the
contention of the appellant, lather they support the defendant-respondent.
In Raja Rama Rao v. Raja of Pittapur (supra)
it was held:
"An impartible Zamindari is the creature
of custom; it is of its essence that no coparcenary in it exists. Apart,
therefore, from custom and relationship to the holder the junior members of the
family have no right to maintenance out of it." In Hargovind Singh v.
Collector of Etah (supra) the Allahabad High Court quoted with approval the
following observations made by the Privy Council in Baijnath Prasad Singh v.
Tej Bali Singh :
433 ".. Zamindari being the ancestral
property of the joint family, though impartible, the successor falls to be
designated according to the ordinary rule of the Mitakshara law, and that the
respondent being the person who in a joint family would, being eldest of the
senior branch, be the head of the family is the person designated in this
impartible raj to occupy the Gaddi." In Raja Rao Venkata Surya Mahipati
Rama Krishna Rao Bahadur v. Court of Wards (supra) it was laid down that an
impartible zamindari was not inalienable by will or otherwise by virtue only of
its impartibility, and in the absence of proof of some special family custom or
tenure attaching to the zamindari and having that effect.
This question, however, need not detain us
long as this Court had the occasion to consider the point at great length in
Mirza Raja Shri Pushavathi Viziaram Gajapathi Raj Manne Sultan Bahadur and Ors.
v. Shri Pushavathi Visweswar Gajapathi Raj and Ors. Dealing with the point in
question this Court observed as follows:
"Since the decision of the Privy Council
in Shiba Prasad Singh v. Rani Prayag Kumari Debi 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 illuminating judgment delivered by Sir Dinshah Mulla for the
Board, the relevant previous decisions bearing on the subject have been
carefully examined and the position of law clearly stated. In the case of an
ordinary joint family property, the members of 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 that from the very nature of the
property which is impartible 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 Rani Sartaj 434 Kuari v. Deoraj Kuari and the
First Pittapur case- Venkata Surya v. Court of Wards. Even the right of
maintenance as a matter of right is not applicable as laid down in the Second
Pittapur case-Rama Rao v. Raja of Pittapur. The 4th right viz., the right of
survivorship, however, still remains and it is by reference to this right that
the property, though impartible, has, in the eyes 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 successionis, the right of
survivorship can be renounced or surrendered.
It also follows from the decision in Shiba
Prasad Singh's case that unless the power is excluded by statute or custom, the
holder of customary impartible estate, by a declaration of his intention can
incorporate with the estate self-acquired immovable property and thereupon, the
property accrues to the estate and is impressed with all its incidents,
including a custom of descent by primogeniture...It would be noticed that the
effect of incorporation in such cases is the reverse of the effect of blending
self-acquired property with the joint family property.
In the latter category of cases where a
person acquires separate property and blends it with the property of the joint
family of which he is a coparcener, the separate property loses its character
as a separate acquisition and merges in the joint family property, with the
result that devolution in respect of that property is then governed by
survivorship and not by succession. On the other hand, if the holder of an
impartible estate acquires property and incorporates it with the impartible
estate he makes it a part of the impartible estate with the result that the
acquisition ceases to be partible and becomes impartible." Prior to the
decision of the Privy Council in the case of Rani Sartaj Kuari v. Deoraj Kuari
(supra), it was always assumed that a holder of an ancestral impartible estate
cannot transfer or 435 mortgage the said estate beyond his own life-time so as
to bind the coparceners, except, of course, for purposes beneficial to the
family and not to himself alone. In 1888, however, this view was shaken by the
decision of the Privy Council in Rani Sartaj Kuari's case (supra). In that
case, the holder of the estate had gifted 17 of the villages of his estate to
his junior wife and the validity of this gift was questioned by his son. The
son's plea, however, failed because the Privy Council held that "if, as
their Lordships are of opinion, the eldest son, where the Mitakshara law
prevails and there is the custom of primogeniture, does not become a co-sharer
with his father in the estate, the inalienability of the estate depends upon
custom, which must be proved, or it may be in some cases, upon the nature of
the tenure". This decision was again affirmed by the Privy Council in the
First Pittapur case (supra). As a result of these decisions it must be taken to
be settled that a holder of an impartible estate can alienate the estate by
gift inter vivos, or even by 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.
Again in Chinnnthayal alias Veeralakshmi v.
Kulasekara Pandiya Naicker & Anr., it was held by this Court that to
establish that an impartible estate has ceased to be joint family property for
purposes of succession it is necessary to prove an intention, express or
implied, on the part of the junior members of the family to give up their
chance of succeeding to the estate. In each case it is incumbent on the
plaintiff to adduce satisfactory grounds for holding that the joint ownership
of the defendant's branch in the estate was determined so that it became the
separate property of the last holder's branch. The test to be applied is
whether the facts show a clear intention to renounce or surrender any interest
in the impartible estate or a relinquishment of the right of succession and an
intention to impress upon the zamindari the character of separate property. In
Pushavathi Viziaram Gajapathi Raj Manne's cases (supra) this Court reiterated
the same legal position.
For the foregoing discussion this appeal must
fail.
This leads us to the other appeal filed by
the defendant. The contention of the learned counsel for the defendant
appellant in 436 this case is that the possession of the appellant was not as a
trespasser but he was a maintenance holder on the khorposh grant (maintenance)
given by the impartible estate holder.
The High Court, therefore, erred in law in
passing a decree for possession and mesne profits against the defendant-
appellant. It was further contended that the Nagaruntari estate was a partible
estate.
As regards the first contention it is open to
a co- sharer to remain in possession of the joint property and the proper
remedy for the plaintiff in such case is to file a suit for partition where the
equities of the parties would be adjusted. The learned counsel for the
plaintiff- respondent on the other hand urged that the defendant's possession
was only as a trespasser. In support of his contention he placed reliance on
Collector of Bombay v. Municipal Corporation of the City of Bombay & Ors.
The majority took the view that:
"The position of the Corporation and its
predecessor in title was that of a person having no legal title but
nevertheless holding possession of the land under colour of an invalid grant of
the land in perpetuity and free from rent for the purpose of a market. Such
possession not being referable to any legal title it was prima facie adverse to
the legal title of the Government as owner of the land from the very moment the
predecessor in title of the Corporation took possession of the land under the
invalid grant.
This possession had continued openly, as of
right and uninterruptedly for over 70 years and the Corporation had acquired
the limited title to it and its predecessor in title had been prescribing for
during all this period, that is to say, the right to hold the land in
perpetuity free from rent but only for the purpose of a market in terms of the
Government Resolution of 1865".
In the instant case the defendant being a
member of a joint Hindu family was entitled to maintenance from the impartible
estate holder. The impartible estate holder executed a khorposh deed in favour
of the defendant. If the document in question was invalid for want of
registration or stamps the same can be looked into for collateral purpose to
find out the nature of possession of the defendant- appellant. This being the
position in the instant case, the case cited above is not of much help to the
plaintiff- respondent. In 437 that case the sole basis of title itself was
invalid. A perusal of the plaint also indicates that the plaintiff had given
some grant to the defendant by way of maintenance and a formal deed of
maintenance was executed. The execution of the document is not denied by the
plaintiff. All that he says is that village Sigsigi was not included in the
deed.
We find considerable force in the contention
raised on behalf of the defendant-appellant that the High Court has decree in
passing the decree for possession and mesne profits against the defendant. The
proper remedy for the plaintiff in this case was to file a regular suit for
partition in respect of all the properties and not a suit for possession of
plots of one village and mesne profits.
The second contention that disputed estate
was a partible estate has been raised only to be repelled. The overwhelming
evidence on the record leaves no room for doubt that the disputed estate was an
impartible estate till the death of the original plaintiff in 1957 In the
result the first appeal No. 209 of 1970 filed by the plaintiff is dismissed
while the other appeal filed by the defendant, No. 2280 of 1970, is allowed and
the decree passed by the High Court is set aside and the decree of the Trial
Court as affirmed by the first appellate court, is restored.
In the circumstances of the case we direct
the parties to bear their own costs.
V.D.K. C.A. 209/70 dismissed 2280/70 allowed.
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