ANANT ~BE & ORS. v. PURUSHOTTAM RAO & ORS

April 17, 1984

[D.A. :0ESAI,A.P. SEN AND v. BALAKRISHNAERA'n1, JJ.] Madhya Pradesh Land Revenue Code 1959, s. 158(1) complete extintiTon iJf ino"l rights [and conferral of bhumiswami rights-lnam ./and~ became.· bhumiswami lands-fmpartibility and devolution by survivorship by ·rule 0/ lineal primo¥eniture Jost. . · , · ·

Words and Phrases-"in respect of land held by him"-Mean~.$ of s 158 (IJ(b) Madhya Pradesh Land Revenue Code 1959. • · ' D In 1837 the. late Maharaja Harihar Rao Holkar 'made a grant of an inam of a garden to the•priest of the Holkar family. The grant of inam was on Putra Pautradi Vansh Paramp_ara condition- by w8.·y of parvariah i.e.,. _ maintenance,·

• The ihree appellants 'in the appeal were the legal heirs and successors E ·bf the grandson of the original inamdar,'and tlie !st Respondent as the sole · survivor of the eldest male line of the last holder, the inamdar and as also the.karta of the joint Hindu family.

The appellants·planitiffs instituted a suit for partition and separate possession of their half-share in the joint family property ·alleging that F defendant No. 1 in his capacity as the karta of the io.int Hindu family was in possession and mangement .of the joint family ·property, including the inam _lands. The claim was- contested by re1pondents-defendants 1 and "2 who contenQ'ed that the plaintiffs predecessor-:in-interest had separated from the family by taking his share in the year 1917·18 and therefore the plaintiff• • had no kind ofrig_ht or title in the suit property and that the inam lands and the properti~s acquired 'from and out.of the· in am :being irnpartible in nature. G the succession-to which was_ governed by 'the rule of lineal primogeniture, the properties exclusively belonged to defendant No. 1 and \hat the conferral l ' ofbhumi$wami right on defendant No. i under S. 158 (li(b) of' the Madhya Pradesh Land Revenue cOde, 19S9 .made \the su.i t lands his separate and exdusive property and it was not part of the joint estate of the undivided ·family.

B The Additional District Judge held that the. inam lands together with .,the property acquired from the income of the inam .were ancestral impariible estate~since the same' h•d \\evolved lby s\ll'vivorshjp \lY the rµ!e of lil'l'll

ANAN i' KIBE~. PURUSHOTTAM RAO

P!}mpgeniture and therefore constituted if int family proper[t and.- \hat th~ ; ~ rule, of impartibtlity and" the sp,ecial. mode of succession by the rule _qf _, iiO.eal primo&enit1:1fe were no~hio$ but iilcid~nts of . the· inam whi'* ,st~dd e~tinguished by S. l58(1)(b) o(the Code. The,plaintiff's claim for partition and separate possession to the ex_t~nt Of their h:alf~share in. the plaint schedule , properties and to me'.sne profit$ were. decreed.

On ~ppeaJ, the High Court reversed the judgment' of the Additional. Dis-trict Judge with regard to the jnam l~nds aqd the houses and other prbpe_rt)' : -acquired out of the _inam holding. '!'he High Court held that the plaintiffs wliO\Ver~ the jUnior ~embers of the fa_mily had no kind - of riiht or tiU~. to the inamlands except the right -to mainfenance and thtit defendant No. 1, •• · tbt'inamdar for the.time beins, became the bhumiswami_ of. the suit lands ·und.er S.158(-l)(b) of the Code' whJch constituted his separate property, The HigJl Q>urt ho.wever main_tained· \he decree of the Addftional District Judge with regard to partition and sepa~ation of t1le plaintiffs' ~hare ·or imm'?vable property. ·Allowing the appeal,

l_: _, ,), .Oil a combined" reading of SS. 158(1) (b} and 164 the legal consequence that ensued was that the incident of the impartibility and the special mode of s.uccession by the rule of tlimogeniture which wefe terms of the grant of ~am l~!Jds under t!w Jagir. Mami.~I of the .Holkar State stood. extinguished. • After the conferment of.bhumiswami rights, the• incidents and character of the tenure beame transformed the restrtctions placed thereon disappeared~ a_qd '!l.~ la!J.ds became capabl_e of being held in joint ownership like any other coparcenary property. [493E]" · J · 4. The""conferral of bhumiswami rights on the holder for the time being under S. 158(l)(b) of the Code in respect of ancestral inarri lands

. neeessarily enures to the benefit of all the members of the joint family.· [493FJ .

5. Impartibilfty is essentiaily a creature of custom. Here it is a . H ter~ of the grant. The Junior members of a family in the case of an ancient

486 SUPREMB COURT RBPORTs .t1984j 3 s.c.!l. .;,.. • A impartiblej'oint family estate take no :rlghf in th'e property by birth and.· therefore have no right of p~rdtioll ha:ving: fegard to the very nature of the ·. estate th.I! it is imartible, The onIY incidence for join\ property which still ·,attaches .\9 tI?.e joint family property .is the right of survivorship which, of course, is not inconsistent with the-custom of·impartibilit)'. [4950] ·

In the instan't Case, the incident of impartibility attached to inam 8 lands no longer exists by reason "of S. 158(1)(b) of the Code as they have now become ·bhumisw~mi lands. The right of juriior me_mbers of the family for · -<. ,, . ... maintenance.is governed by custom ~nd (not based_ upon ally joint lright or · interest in the property al co-owners. [495EJ ,• . 6. To establish that a family governed by the Mitakshara in whi!b there i& an irri.partible ~state. has ceased to "b~ joint, it is necessary to p_rove c .. an intention, express or implied, on the part ot the junior members o.f the family to renounce their succes!ion to the estate. [49SH] ·

7, The impartibi!ity of the tenure governed by tl)e Jagir Manual· of the Holkar State and the rule of· lineal iPrimogeniture governed by the 'llagir ·Manual, Chapter 11, rules-2 and 3 did not 'per. se destroy its nat.ure aS joint family property Eor render' it the separate property of the last holder D sg.as t~ destroy_ the right o~ survivorshiP ; the estate its charaCter of joint farp.ily · property and its devolution was governe\l by ·the d :!Vol ution \\as governed by the ruk: of sutvivorship as modifie_d by the rule of lineal priinoge;niture. . . [49501 . • . . Shiba Pra•al/ Singh v•.Rani Prayag Kum>ri Debi & Ors., LR (1931-32) S91A 331 and Nagesh Bi'1o Desai v. Khando Tirmal Desai, (1982) 3· SCR 341, referred 10;

CIVIL APPELLATE JUR!SD]CTICiN : Civil Appeal No. ·4~7. of 1971. Appeal by certificate from the Judgment and Decree dated F 2.5.1969 ofthe High Court of Madhya .Pradesh, (Indore Bench) in Civil First Appeal No. 91 of 1962. • • • V.A. Bobde, S.D. Mudaliar and A.G. Ratnaparkhi the .. for ~ appellants. G.L. Sa~ghi, D.N. Misra and S. Sukumaran for the respon- dents.

. The Judgment of the Court was deliver~d by . . . SEN, J. This appeal on certificate is directed against a judg· ment anll decree of the Madhya Pradesh High Court dated May ff 2, 1969 substantially reversing the judgment and decree passed ~ - .. by the.third"Additiomil District Judge, Indore dated June 18/19, 1962

ANANT KIBE y. PURUSaottAM RAO (Sen, J.) 481

and dismissing the plaintiffs' suit for partition apd separate possess- fon of their half share of the suit properties detailed in' Schedul~ •. 'A' appended to the plaint except with respect.to a house and the agricultural lands a·t , Ujjain. Duridg the course of the hearing t.he parties have come to a settlement and the terms of the compromise have been recorded. Nevertheless, the correctness of the judgment .. 'r delivered by the High Com;t is open to serious doub.t. and as it t I\ involves a question of general impJrtance, we proceed to record our views. , .. c '· The facts giving rise to the appeal are as follows. The repor\ of the Inam Commissioner discloses· that in 1837 the late Maharaja Hariliar Rao Holkar made a grant of an inam of a garden known as Rambag in Kasba Indore · admeasuring 15.62 acres to Abaji Balla!, the priest of the Holkar family on his representation that he was in. service of the Huzur Dar bar for .a long period but had no garpen . at Kasba tndore and was therefore finding it difficult iu getting tulsi leaves and flowers for.malfing offerings to the deities. The grant of. inam to him was on P1ftru Pautradi Van sh Parampara condition by way of parvarish. It appears from the report that Abaji Ballai h11d only one son name,9 Laxman and he also had only one son named . Raghunath Rao. After the d.eath of Abaji Bailal be was succeeded by E Laxman. It appears that Laxman represented in the year 1886 that he was entitled to hold as inam an area of 15.62 acres in Kasba Indore while the land in his possession was only 5;91 acres, the remaining aren having been acquired by the Durbar and prayed for a grant of an area of 9. 72 acres in exchange. An inquiry was there· upon held and the claim was found to be true. By Durbar Order . No. 9 dated December 14; 1888 the inamdar was given 9.'72 acres of land in Mauja PalashiN Hana. It also appears that· the family built residential houses 'lt Indore presumably out of the income of the· inITT!l and also acquired immovable properties at ·ujjain consisting of a house and some agricultural lands. After the death of Laxman Rao, his son Raghunath Rao was recognized to be the inamdar.

" The common ancestor Raghunath Rao had three sons, Madhav Rao, Sadasbiv Rao and . Gopal Rao. Of these, Madhav Rao and Sadashiv Rao had· pre-decased their father ,Raghunath Rao. Madhav Rao .died without leaving an heir while Sadashiv

488. . SUPREME COURT REPORTS [1984) 3 s.c.IL ·. ('-. • Rao left a son Purushottam l,'lao. the third son Gopal" Rao -dis· appeared about an yea.r before the death. of his father Raghunath - · R;i1> and his whereabouts were not known till the news of his death ill 1932 ai the.Secunderabad was received, after the death of. Ragh~nath .. Rao in 1928. On· the · death of Raghunath Rao-, th.e last Purushottam Rao being the sole siirvivor of the eldest male' line of holder became the inamdar and also the karta of lhe joi~t IDndu fani'i!y; · • The suit out of· which this appeal arises was instituted by . c;:,, . .the three appellants ,Anant, Gov ind and their mother Smt. Laxmi · ·Baj being t~e legal heirs and successo~s of Gopal Rao, as plain· . tiffs on DeC'ember J2, 1955 for partition and separate possession of their half share in the joint family property described In'' Schedule 'A' appended to th-e plaint against respondents 1 and 2 ' Purushoitam 'Rao and his mother Smt. · Rama Bai beiQg defen_dants ' I) ; '1 and 2, impleading Krishna. Ra'c>, ~h.e · eldest soa of Gopal Rao · as defendant 3 b~ca11se he failed to JOJO them .a~ a plaintiff in the · .. suit. The case of the plai_ntiffs was tl\at defendant No. (.' . ~Purushottam Rao in his capacity as tlie karta of tlje joint Hindu· family was in possession and management of the joint .family . '

property, including the iuam lands at Kasha, lndore and ·Mauja . E Pafashiya Hana. The plaintiffs' claim ·was coutested by defendants , l '.and 2 Purushottam Rao aud Smt. llama Bai. They pleaded inter afia thqt the plaintiffs' predecessor-in-interest Gopai Rao had separated from the family by taking his share in the Y,ear · 1917,13 . and ·.therefore the plaintiffs had no kind of right or title in tlie suit properties that the inaIIi lands and the P'roperties F acquired. from out of. the inam being impartible in nature, the · succession · to which was governed by the rule of • Jib.ea! primogeniture, the properties exclusively belonged- to defen· - dant No. 1 Pnrushottam Rao ; and that the conferfJll or' · bhumiswami rights on respondent l under s. 158(1)(b) or' the. ·ci.: Madhya Pradesh Land Revenue Code, 1959 mad_e the suit lands his. separate and exclus\ve property and it was not part of the joint · estate of the ulldivided family. Iucidehtally, the Madhya Pradesh Land Revenue code, 1959 was brought into force w.e.f,. October, 1, 1959 which had the effect o( ehanging the nature of the

u.: . The point in controversy in this appeal is now -limited to the

ANANT KIBE .v. PURUSHOTTAM (Sen, .1/1 4~9

in.~m lands and Jh~ !rouses and· other 'prbperties built from O\!t of the income of the inam lands at K_asba Indore and Mauja . Palashiya Hana. The Jearn.ed "Additional. District Judge held that the inam lands together with the properties acquired from • th,e iQcome qf the inam were ancestral impartible estate since tJie same had devolved. by survivorship by the rule of lineal ' pt;imogeniture and therefore constituted joint family J'rop_er~ and tb,at t_he rule of impartibility and •the special mode of succession b:.J the rule of lineal primogenit!1re were nothing bl\! incidents_ of· th~· lnam which stood e~tinguished ·by . s. 158(l)(b) oC the Code b~ virtu~ of which the foanifands bec!!ime · bhumiswami, the successl'6n to which )Vas governed by the personal 'law of the partibs. The.learned Additional District Judge accordingly held that the inam lands at Kasba Indore ·and Mauja Palashiya Hana constituted joint family property of' the pariies and decreed the plaintiffs'. claim for partition and separate possession to the ext~nt • of their half share in the properties described in Schedule 'A' to . the plaint at!d ·to mesne profits thereof. On appeal, the . High Court reversed the judgment of the learned•:Additlonal District Judge with regard to the _inam -lands and the -houses and oth~r property. acquired at Indore ·out of the jncome. of the ·inam holding that they constituted a special .irant regulated by the , Jagir · Manual o.f the Holkar State, According to the High Court, the pfaintiffs who were the junior. members of 'the family had no kin·d of right .or title to the inam lands except perhaps. · the right,. of n)lintenance and that too up to a certain degree and subject to its determination by the State. Accordingly ' the High Court held that defendant N_o. I Purushottam Rao, the inamdar for the time being, became the bhumiswami of the suit F< Jancjs under s. 15\(1) (b) of the Code which constituted his separate property. The High Cour~ however maintai.ned tbe decree 'of the learned Additional District Judge with regard to partition nnd s~paration of the plairrtiffs' share of immovable • . properties at Ujjain.

The short and narrow question involved in this appeal is whether the inam iands which became bhun'iiswami lands under "i·1'5.8(l){b) of ihe Code were the self-acquired property of the · inamdar and defencjant No. 1 Purushottam Rao was entitled to remain in full and exclusive possession and enjoyment thereof, . or the conferral of bhumiswami rights in respect of such. inam

496 \ sliPRBME t:OUtlT REPORTS [19841 3 s.c.tt;

lands on him .must enure to the, benefit of the.members of the joint Hindu family and therefore the bhumiswami lands were liable to be partitioned -like any other coparcenary property,

It is common ground that the inam lands were . impartibl~. the s11ccession, to which was governed· by the rule of lineal primo• · genitul'e. ·That must be so because the Jagir Manual of the . ' . ' .-~, .. ~olkar State by r. 134 ptovides ,that the rule which refers to . . jagirs will apply 'to inams also except to the' extent modified by · any Darbar Order. or cir&ular. Chapter II, r. 2 provides: .. "Z. A Jagir grant shall be· indivisible· and impartible , property;''

R. 3 provides for the rule of lineal primogeniture and it ;;.. follows :

· "3. Every Jagir grant, which is not a purely lifegrant, 'Shall des~end in the. order of primogeniture h. to the Cldest male line of the last holder e.g. If a grantee. has desc~ndants as sho9n. in the following pedigree table : .. ' A (Grantee) I I B c D I I I I - I r I G H l I I I J .. I I • E I I N L · > I M. J(

The Jagir will after A's death descend to B. After B it will descend to E to K." , • Proviso to r.3 preserves the right of maintenance of the ir ;unior members or the family and it reads : . ...-4 • "Pr9vided that· the right of the members of the ··/

· ANANT KibE v. PUROSHOTTAM (Sen, /.) 491 junior branches, claiming de1cent from the originat grantee A to a share in the income of the Jagir or maintenance acc"or· • ding to the custom. of the family or orders of the Govern- ment, shall not be affected thereby." · · 0

Although the original sanad gran\ed to Abaji Balla! in 1837 is not forthcoming, the report of the Inam Commissioner discloses that the grant of ina"m to him was on Putra Pautradi Vanash Paramp~ra condition by way of parvarish i.e. lllaintenance. Thus • the grant of the inam lands was for maintenance of the. members of the joint famHy and was also heritable. d' There is ample evidence on record to show that the inam . lands-althoug~impartible were ·always treated by members of the family as part of the joint family properties and the sucqession to the inam was by the rule of - survivorship as modified by the rule of lineal primogeniture. It is - also clear that (be junior members were in joint enjoyment of the inam lands and that was because the proviso tor. 3-expr.essly recognized their ~ights of maintenance. Further, the evidence shows that the properties acquired by the inamdar for the time being from out. of the income of the in am such as the two houses at Indore a.nd other properties were always E t!ealt ;vith as part of !_he joi11t family propertt. There is on record, ad'applic.ation for mutation made by defendant No. I Purti~o­ ttam Rao on December 15, 1928 (Ex:P-6) wherein he had stated that his grand-father had died on August 8, 1928 and therefore he - prayed for substitution of the names of the legal peirs in the inam register, the material portion of which reads :

"I am his son's son i.e. his grandson and as such his heir. (A) Besides me the sons. of my uncle i.e. (I) Krishna Rao (2) Anant Rao and (3) Govind Rao are also his . helrs, Besides us no other person is his heir (A)." .. ... ' The prayer was that the names of all these heirs be substi- tuted. There is also an affidavit of Purushottam Rao dated Decem· ber 7, 1928 (Ex. P-5) reg~rding the death of his grand-father Raghunath Rad and it rr,entions that he had three ·sons viz, Madhav Rao, Sadashiv Rao and Gopal Roo. It was averred that Madhav

4ill)' -';!'1:'., ' SUPRB!lli. ~OUR T REPORTS [t984l 3 s.c.it

At., ·· Rao. .wh-0 wa~ the eldest had alrea+!y. expired leaving no issue. and • his wif:'had also died and that the .·whereabouts of Gopal Rao were not known since 3! or 4 years. It was $tated that Gopal Rao· had t!Tree sons viz. Krishna, Anant and Govind ~nd all the three of them, were minQfsl It then recites:~ "'All th.e three minor sons of Gopal Rao' were living jointly with me." Purushottal!l Rao . examined as· DW 24°has stated that the whereabouts of Gopal Rao were not known when his grand-father Raghu9ath Rao was opera·: , t~ . upon - resulting in his ,- death' in the hospital. When confronted< ; ~

with'portion marked 'AA.' in Ex. P-6 he unequivocally admitted tlmt lfe.could n<lt deny the statement made therein. He however, Q::. · wen.t .on to assent that the expenditure incurred . by him on .the,: plaintiffs by way of maintenance was not incurred by reason of their l:>eiQg.the members of th~ joirit family but because they had , n6"feiiources o( their' own· and· it was necessary to give them. 'rtiainfo11ance allowance under the Inam Rules. It if quite appa-: 0

i:en\?r6m the course of dealings that the i p lands at Kasbii' Ind'ote and Mauja PalaShiya Hana and other 'riiam properties lir . tlie 'hands of the common ancestor Raghtinath . Rao which devoi::' l(eif upon defendant , No.· 1. Punishottan\ Rao were nothing but an ancestral impartible estat~. '

"". ·Under the scheme of ·the Code there was a,drastic cMnge bi.~ught about not on. in th,e nature of the tenure of inam lanq~ but:.1\so iri the mode of succession., S.158(1 )(b} of the colte . provides: '- I '' •

·- "158. Bhumiswami-(1} Every person who at the time of c9ming into force of this Code, belongs to any of the following classes shall be calkd a Bhumiswami and ,·$ball )lave all the. rightS and be subject to all the liabili· , ties conferred or imposed· upon- a Bhumiswami by or . ,under this code, namely :. • .'' . <al •• ** . **. ill• .. ' '

., .. ,(b), every person in respect of land held by him in the . Madhya Bharat region as .a Pakka Tenant or as a.Muafi• .· dar, Inamdar, or Concessional Holder, as defined in the

• ANANT KIBE v. PURUSHOTTAM (Sen, J.) -, 493

Madhya Bharat Land Revenue and Tenancy Act, ~;unfa,t . ; ii.A 2007(66 of 19.50)"; · . · . '. " The plain language -0f s.158(1)(b) effected a complete extinctibn of the inam rights followed by simultaneous conferral of bhumiswami rights. Every person, in respect ot the land hold by him .in the . Madhya Bharat region a~ an inamdar, at the time of the coming into force of the code, became a bhumi- swami thereof, and acquired. all the rights and became. subject to all the liabilities of a bhumiswami under the Code. The words ''in respect of land held by ·him" appearing in s. l58(l)(b) refer to the stains and character. of the tenure holder in relation to the holding on'the appointed day. The accrual of the status of bhumi- swami by such person was automatic and be acquired all the rights and became subject to all the fiabi!ities conferred or imposed , upon a bhumiswami by or under the Code. As necessary a comllary, he became subject. to the provisions ofs.164. S.164. provides that subject to his personal law, ihe intersest of a Bhumiswami shall, on his death, pass by· inheritance, 'survlvorship or be<juest, as the case may be. On a combined reading of ss.158(l)(b) and 164, the legal consequenc~ that ensued was that the incident of impartibility and the special mode of succession by thctrule of.primogeniture whicji were terms of the grant of inam lands itnder the JagirManual of the Holkar Stale, stood extingui· • shed. After the conferment of bhumiswami rights, the incidents arid char;icter of the tenure became transformed and the restrictions placed thereon disappeared, and such. lands became capable of being held in joillt ownership like .any other coparcenary property, It must logically follow that the confemil of bhumiswami rights on 'IF the holder for the time being under s.158(l)(b) of the Code in respect of ancestral inam lands· must necessarily 'enQje to the benefit of all the members of the joint family. In our judgment, the view expressed by the High Court that the inam lands and the two houses constructed at Indore and ~ther prop~rties acquired from out of the income. df the inam e;clusively belonged to defendant No. 1 Purushot,tam Rao, tfte holder for the time being at the time when the Code was brought into force, can hardly be sustained. Since the deci!!ion of the Privy C~uncil in Shiba Prasad Singh v. Rq.izi Prayag Kumdri Debi and Orsfl'. it must.be taken as well-settled that an estate which is impartible by custom cannot be said to be the separ11t~ or ex~lusiv~ \I) L.R. (1931-3~) 59 I. A.3~J

494 . SUPREME C0URT REPORJ:S (198 4] 3 S.C.R •

property of the holder of the estate. Where the property is ances- ttal and the holder has succeeded tp it, it would be part of the joint estate of the undivided Hindu ·family. · In the following · • illuminating passag~ Sir Dinshaw Mulla observes : . .. B "The keynote of the whole position, in their Lord-. · ships view, is to be found. in the following passage in the judg111ent in the Tipperahl 1\ case : . ·:', !' , •,.. "Where a custom is prove~ to exist, it supersedes , the general law, which however, still regulates all beyond ·c the custom."

"Impartibility is eMentially a creature of custom. In the case of ordinary joint family property, the members of the family have (I) 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) thp right of survivorship. The ,first of these rights cannot exist In tjle case· of an lmpartible estate, though ancestral .. from the very nature of tlie estate. The second is incom• patible with the custom · of impartibility as laid down in Sartaj Kumari's casel•\.and the first Pittapilr casem, ands~· E · also the third as held in . ' . the second Pittapur easel•'. .To thi$. extent the general Jaw of the Mitakshara has been super• seded by eustom, and the impartible estate though ancestral is clothed with the ·incidents of self-acquired and separate property. But the right of survivorship ls not inconsistent r with the 'custom of impartibility. This right, therefore, stiil remains and this ·is what.was held in Baijanth's case"'. Tq this extent the estate still retains its character of joint family property, and its ·devolution is governed by the general Mitaksbara law applicable. to such • property. Though the other rights whi.ch a coparcener acquired by birth in joint family property no longer exist, ,the birthright of the senior member .to take by survivor- ship still remains, N,or is this right a mere sucression·is -siqiitar to that of a reversioner succeeding on the death

1Copy pinpoint1. 12 MIA 523 . 2. CR(l883) 15 A 51

3Copy pinpoint3. LR(l86P) 26 IA. 83 . 4. LR\1618) 4~ IA 14? ~· LR 49 IA 19?

ANANT KIBE v. PUR.USHOTTAM (Sen, J.). 495 • · of a Hindu widow to her husbanq's estate. It is a right which is capable' of beicg renounced and surrendered. Such ~eing their Lordship's view, it follows that in order to establish that a family governed by the' Mitakshara in which there is an impartible estate has .Gease'tl to be joint it is necessary to prove an inte11tion, express or implied, on the part · of the junior members of the family to renounce their right of succession to the estate." The incidents of impartible es(ate. laid down in Shiba Prasad Singh's case and the law there stated have been reaffirmed in the • subsequent decisions of the Privy Council and of this Court. It is r.ot neecssary to refer to them as they have all been dealt with in c a ~ecentjudgment of this Court in Nagesh Bisto fJesai v. Khando . Tirmal Desaf1 1\, Jmpartibility is essentially a creature of custom. Here i.t is a term of the grant. The junior members of a joint family in the case of anci~nt impartible joint family estate • take no right in the property by birth and therefore have no rig4t of partition having ~cgard to the very nature of the D estate that it is impartible. The only incidence for joint property which still attaches to the joint family property is· the right of survivorship which, of course, is . not inconsistent with the · · custom of impJlrtibility. The incident of impartibiliy attached to inam lands no longer exists by reason of s.158(1)(b) of the Code E· as they have ,now become bhumiswami lands. The right of junior members of the family for maintenance is governed by custom and not based upon any joint right or interest in the property as co- ownets. In case of inams in the Holkar State ..such right was again a.condition ofthe grant. In view of the authorities cited in· Nagesh Bisio Desai's case, supra, it must be held that the inam F lands though impartible were nevertheless joint family properties of the parties. The impartibility of the tenure governed by the Jagir Manual of the Holkar State and the rule of lineal primoge~iture • • governed by the Jagir Manual, Chapter JI, rr'.2 and 3 did not per se destroy its nature .as joil'lt family property or render it the separate JTroperty of the last bolder so as to destroy the right of survivor- G • ship ; the estate retained its character of joint family property and · ' its devolution was governed by the rule of lineal primogeniture.· To establish that a family · governed by the Mitakshara in which. ' there is an impartible estate has ceased to be joint, it is necessary to prove ap intention, express oi: implied on the part of the junior members of the family to renounce their . . succession '. - ' . to the estate, " . ,' ( '

t. .. [19821. 3 SCR 341

• • 496 SUPREMB COURT REPORTS {1984) 3 S.C.R.

The"learnefl. Ad\litioual District Judge durin~. the ,c_ourse of his judgment has h~ld on consideratio,n of the evideµce that tnere was no partition in•the joint. family as alleged DY defendants 1 and 2 and that· finding has not been. reversed l;Jy the High Court in appeal. 0

The learded Additional District 1udge has referred to several . 'Welbknown decisions of the Privy Council dealing with the inci- dents of an impartible estate, including that of ShibJ Prasad ,Pingh's · case •. supra, l;Jqt the High Court surprisingly did not refer to anyote of them. He ha·s also particularly referred to the nature arid inci- · : denc.e of a ~rofected thekedari under. s.102 of the .e:l'. Larid Revenue Act; 1917· and relied upon the decision of thePtivy ¢ouncil in. Thakur · Bhagwan Singh v. Darbar Singh 111 aml also ·to · • · several decisionsofthe Nagpur . and Madhya Pradesh High Couilts · and in particular to Man( ·Ram v. Ram Dayal">° and Smt. Pi/andni . j(lll~kram v. Anandsingh Sakharam' 3 ' where a similar question ar~e. ' He further felt tiratthe principles laid do\vn by the )lomhay High . CVnrt in Lingappa . Rayappa D~sai v. Kadappa Bapur'ao ,Desai"\ dealing with lhe Bombay Hereditary Offices Act, 1874 holding tlfat 'wata~ lands stand in the same footing as ancestral iinpa~ble estate in a joint Hindu family passing by survivorshipfrom::pne : line to another according to primogeniture, must govern the ·cll!e . ., The. High Court declined to follo'w the. long line of decisions of~e ' Nagpur and Madhya Pradesh High Courts. dealing with the protec- <ted the kedari tenure under s.109 of the C.P. Land Revenue t:'odt,. 1917 saying.that they were "inapplicable" 'to the case of jagir a11d •in am properties which at no time were considered to be jilfut family properties but constituted a.'special kind of grant' regulat~d .. by the terms of the.grant or the rules governing the same.· lt·all;o . declined to follow the decision of the Bombay High Courth . Ungappa's case, supra, because ·ii did not "appeal" to the ccrlirt as it distinguished the decision of the Madras High Court il1 'Sri .. · Pavu Janardhana Krishna Ranga Rao Bahadur v. The State of Madras'•i "for reasons "hich did not appear to be sound". Jt!is difficult to sustain both on principle and .precedent the view the • of • High Court that inam lands being 1mpartible in nature, the : s11cc~s­ sion to which was governed by the rule of lineal .Primogeniture; the • t~o houses constructed ·at Indore and other prop,rties acquii-l:d '

--(.,,l)-:L-::R:-[c:-19::2c::8J'"'.S:::S-::IA-:--:-t=-so. ·. ' • (2) A.1,R. 1960 MP 7. .. ' (3) 1960MPLJ96Z. (4) tL.R. 1940Bo!n. 721, - ' \S}. A.I.R. 1953 Mad. 18?.

ANANT KIBE v. PURUSHOTTAM (Sen. J.) 497

from out of the income of the inam exclusively belonged to defen-. dant No ..1 Purushoham Rao, the holder for the time b.eing and . aonstituted his separate property. · In the former State bf Madhya. Pradesh, the existence of such and.impartible tenure was ·not unknown. The nature and incidence of a protected thekeqari tenure. under s.\09 .of the C.P. Land B Revenue Act, 1977 came up for co11sideration before the Privy Coundl in Bhagwan Singh's case, supra. The Privy Council obser- I i. . ved that though thy tenure of'a protected thekedari was impartil;lle I ' ' ·and descended.by primogeniture and was made inalienable, and it was provided that only one ·person at a time shall be entitled to

' succeed. to such status, at the saroe time : c "The Act recognises that leasehold interests, though , impartible, may nevertheless be joint fa_mily property of the thekedar and hjs family." · This was in consonance with the view expressed by Sir Bipin Krishna Bose, Addi. J.C. in·Fagwa v. Budhram1 1\ that the .grant of a protected thekedari tenure to the eldest male member of a family did not make the property his separate property: In Narayan Prasad v. Laxman. Pra,ad 12 > J. Sen, J. hold t~at where . protected thekedari rights in respect of a village were acquired out of joint family 'funds, the village would be joint family property and a m~mber of the joint famiiy would ·be entitled to a share in the E theka and to be maintained out of it. ·In Chandanlal v. Push- ...\ karraJI'), Kaushalendra Rao, J. ,peaking for the Court observed: "It has always been the accepted view that the grant of protected st~tus to a thekedar did not make the·theka • the exclusive property of the person on whom the protec- F ted status is confe(red!' The leartied Judge then referred to the decision of the Privy Council in Bhagwan Singh' s case and rejected the contention that the con,ferral of the protected status on one of the member~ • destroyed the pre· existing rights of the other rnembers of .the G family. · In Sukhwnboi & Anr. v. Ramsharan Doma Sao and Orsi•\. •! Mudholkar, J. tned to draw a distinction between the present rights and futuie rights of the members of the family and held that / · wliile the junior members have future or contingent rights such as H .... ' - ( 1 ) (1913) 10 Nag. LR 64. (2) (1945) Nag. LJ 1291. • (3) !LR[ [1952] Nag. 318, (4) [1951] Nag. LJ 433.

498 WPREMa COURT REPORTS [1984) 3 S,C(.R A. a right of survivorship, they hav.e, apart from custom or relation- /

ship, no present rights as, for instance, a right to restrain alienation or to claim maintenance. The decision of Mudholkar ·J. in Sukhambai's case taking a narrow· anti restricted view of the rights of the members of a joint Hindu family to participate in •the preseµt enjoyment and management of a protected thekedari B tenure was,however reversed on appeal by B.P. Sinha, C.J. an.d Hidayatu!lah, J. in Shiv Prasad Sao v. Sukhan Bai (Letters Patent Appeal No. 19 of 1449 decided on -December, 30, 19.54) observing thaf if there was a family arrangement for the joint enjoyriient of · th~ theka In the. past, it would bind not only the protected thekedar· c for the time bein·g but the whole family and so long as the family ' arrangement is not rescinded by the family itself, it must conti.nue.

. :i'he learned Judges considering the implications of s.109(l)(a) of the Act observe·d : • "The conferral of protected status does not disturb ) .the rights of the members inter se though they· may not be recognised by the State. As between mrmbers the rights of.any particular_ member under the arrangement must continue."· ·As regards the validity of arrangements made by the co-sharers in-a theka dividing the property between themselves for beneficial enjoyment of the thekedar, they said : "From the year 1881 when all existing arrangements were to continue, down to this day when private partj- • tions and family arrangements have been recognised as ·. ·binding on the' family, there is an underline/current of F recognition of joint family status. Most of these villages, l · when they were acquired, belonged, to a joint family a~d the intention in conferring protection was not to disturb arrangements but to recognise one member as a Thekedar and to restrain transfers . and . impose impartibility and G . primogeniture. Even though the Act of 1917 eQacted about-private partitions and a~rangements, the law was merely declaratory offamily custom"as is apparent from a"persual of the various Settlements Reports." \ The' learned' Judges then added a word of caution: "Under the C.P. Land Revenue Act, a protected status could be conferred not only upon Hindus but also upon [ Mmlin-s. ad ct~·ers .. 'Ilie niks cf inputitle . .

• ANANT KIDE v. PURUSHOTTAM (Sen, J.) 499

estates as understood in Hindu law cannot, iherefore, be A lllade applicable and the analogy is apt to be misleading."

• • Similar question arose in.Mani Ram v. RalJ1 Dayal, supra, and

. i '>--' Smt, Pilanoni Janak'ram y. A11andsingh Sakharam, supra. The decisien in Mani Ram's case is of sowe importance. Here, T.C. Shrivastava, J. had to consider the impact of s.39(1) of the M.P. Abolition of Proprietary Rights (Estates Mahals, Alienated Lands) B

Act, 1951 which provided that where I.he proprietary rights held .by a protected thekedar vest in the State under s. 3, the Deputy Commis- sioner may reserve to such proprietor the rights of an occupancy c tenant in the. whole or part of the home-farm land and shall determine the rent thereon. S. 39(2) thereof. provide'd tbat any person becominj! an occupancy tenant under sub-e.(l) shall lze a tenant of the State. The contention on behalf of the protected thekedar. who brought the suit was that by virtue of such settle- ment he _became the ftlll andJexclusive tenant thereof. The learned. D Judge after rnferriug to the decision of the Privy Council in Bhagwan Singh's case, supra, and the aforesaid decision of the High Court in Shiv Prasad Sao's case, supra, reiterated that although . s. 109(l)(a) of the C.P. Land Revenue Act, 1917 provided that protected thekedari rights would descend by the rule of primoge- .niture and the thkea was impartible in nature, the rights of the other inembers of the joint Hindu family in the theka continued thou~h they could n~t obtain a partition of .the lands in the th~ka or claim to be in possession of any lands pertqinin.g to the theka; He ref~rred to the observations made in Shiv Prasad Sao's case set out above and observed.that it was. open to the protected thekedar to come to an acrangement with his co-sha_rers to divide the lands attrtched to the theka and' such a family arrangement would be binding on the co-shar~rs. Repelling the contention based on s. 39 (I) of that Act be held that after the ·abolition of the proprietary rights in 1950, the rights of protected thekedars had completely disappeared and the statutory bar of impartibility and inalienabi- G lity' removed and therefore the lands which were joint.family lands · subject to statutbry restrictions assnmed the.ch·aracter of norlnal joint family ·property free from the statutory restrictions. In Smt. f.ilanoni's case, supra, K.L. Pandey; J. held that although under. cl.(5) of the Sarangarh State W~zib·ul-erz there: was no right of H partition given to a thekedar gaontia, but it permitted joint and \Jivide\l management of the bhogra lands- attached to the theka ~

500 SUPREMB COURT REPORTS [1984] 3 S.C.R. 0 A among the members of the family and though the State had reser• · ved to itself under cl.(15) the .right to in'duct a new thekedar who became entitled to the r.ntire ohogra lands in the village, the effect of the two provisions was that. the State could not be bQund by a • partition effected among the members of the family by way <>r a family arrangement but it would be binding on the members. or the family, inclnding the new thekedar who may have succeeded to the ·status of a thekedar gaontia. As. to the settiement of such bhogra lan·ds wit.h the thekedar in raiyati rights under s,54(1) of' the M.P. Afiolition of Proprietary Rights (Estates, Mahals, Alie· nated Lands) Act, 1951, the Court held that such settlement must c enure to the benefit of the bhogra holders under a family arrange• mtlllt since th¢ lands continued to be impressed with· the character of being joint family property.

The point in controversy really stands concluded by the recent decision of this Court in Nagesh Bisio Desai's case, supra. · There, the question was whether the plaintiff being the holder fot the time~being of the Kundgol Deshgat estate whicli was an impartible estate, the. succession to which .was governed by the rule of lineal primogenitnre, was entitled to remain in full and exclusive possession and enjoyrrient of the watan. lands resumed umler s. 3(4) of the Bombay 'Pargana & Kulkarni Watans (AbOlition) Act, J950 ands. 4· of the Bombay Merged Terri\ories Miscellaneous .Alienations Abolition Act; 1955 which had been regranted to him·as an occupant thereof under ss. 4 and 7 of the Acts respectively. ~twas held that the plaintiff' a. contention ran counter to the scheme of the Bombay Hereditary Offices Act, 1874 and ~as against settled legal principles, and that the Watans Act was desigqed to preserve the pre·existing rights of the members of. the joint Hindu family. · The . subrriission based on the alleged impartibility of watan property and-the applicability of the rule of lineal primogeniture regulating succession to the estate was rejecte.d on the .ground that it° could not prevail as these being nothing more than the incidents of the' watans stood abrogated by. s; 3(4) of the 1950 Act ands. 4 of the 1955 Act. It was held that the efl'ect ·of\be no.n·obstante clause in s. 3(4) of qie 1950 .Act. was to bring about a change in the tenure or character of tbe JI holding as watan lands but did not affect the other legal incidents· of the property under the personal law and if the property belonged to the joint Hindu family, then the porma\ ri~hts of tjle mem~er@ ••

A.NANT KID!! v. PUl\USHOTTAM (Sen, J.) 501 of the family to ask for partitiOh were not in any way affected and A therefore the re· grant of the lands to the watahdar under s. 4(.1) of the 1959 Act ands. 7 of the 1955 Act must ensure to the benefit .of the entire joint Hindu· family. That precisely Is .the position here. Although under the Bombay Pargana & Kulkarni Watans (Abolition) Act, ·1950 and the Bombay Merged Territories Miscellaneous Alie- • 'r nations ;\bolition Act, 1955 there was' at first an abolition of. B • • watans ~nd resumption of watan lands, followed by re-grant of ·such.lands to the watandar as. an occupant. under the Bombay Land Revenue Code, 1879, that hardly makes a difference in principle. The only difference is that under s. 158(l)(b) of the · M.~: Land Revenue C9de, there was a simultaneous extinction c of ·the inams· resulting in conferral of. bhumiswami rights on .every person holding inam I.ands on the date on which the Code -< • was brought into force. • T]le result the-refore is that the appeal must succeed and . is allowed. The judgment and decree passed by the High Court D are reversed and those of the .learned .Additional District Judge decreeing the plaintiff's suit for partition and separate possession of their half share in the properties described in Schedule 'A' '.to the plaint ~re restored. :fhe decree shall be drawn in terms of the compromise arrived at. £ • There shall be rio order as to costs.

N.V.K. Appeal allowed.