TMI Blog1984 (4) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... mportance, we proceed to record our views. The facts giving rise to the appeal are as follows. The report of the Inam Commissioner discloses that in 1837 the late Maharaja Harihar Rao Holkar made a grant of an inam of a garden known as Rambag in Kasba Indore admeasuring 15.62 acres to Abaji Ballal, the priest of the Holkar family on his representation that he was in service of the Huzur Darbar for a long period but had no garden at Kasba Indore and was therefore finding it difficult in getting tulsi leaves and flowers for making offerings to the deities. The grant of inam to him was on Putra Pautradi Vansh Parampara condition by way of parvarish. It appears from the report that Abaji Ballai had only one son named Laxman and he also had only one son named Raghunath Rao. After the death of Abaji Ballal be was succeeded by 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 area having been acquired by the Durbar and prayed for a grant of an area of 9.72 acres in exchange. An inquiry was thereupon held and the claim was found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal primogeniture, the properties exclusively belonged to defendant No. 1 Purushottam Rao; and that the conferral of bhumiswami rights on respondent 1 under s. 158(1)(b) of the Madhya Pradesh Land Revenue Code, 1959 made the suit lands his separate and exclusive property and it was not part of the joint estate of the undivided family. Incidentally, the Madhya Pradesh Land Revenue Code, 1959 was brought into force w.e.f. October 1, 1959 which had the effect of changing the nature of the tenure. The point in controversy in this appeal is now limited to the inam lands and the houses and other properties built from out of the income of the inam lands at Kasba Indore and Mauja Palashiya Hana. The learned Additional District Judge held that the inam lands together with the properties acquired from the income of the inam were ancestral impartible estate since the same had devolved by survivorship by the rule of lineal primogeniture and therefore constituted joint family property and that the rule of impartibility and the special mode of succession by the rule of lineal primogeniture were nothing but incidents of the inam which stood extinguished by s. 158(1)(b) of the Code by virtue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le property. R. 3 provides for the rule of lineal primogeniture and it follows: 3. Every Jagir grant, which is not a purely lifegrant, shall descend in the order of primogeniture i.e. to the eldest male line of the last holder e.g. If a grantee has descendants as shown in the following pedigree table: 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 junior members of the family and it reads: Provided that the right of the members of the junior branches, claiming descent from the original grantee to a share in the income of the Jagir or maintenance according to the custom of the family or orders of the Government, shall not be affected thereby. Although the original sanad granted to Abaji Ballal in 1837 is not forthcoming, the report of the Inam Commissioner discloses that the grant of inam to him was on Putra Pautradi Vanash Parampara condition by way of parvarish i.e. maintenance. Thus the grant of the inam lands was for maintenance of the members of the joint family and was also heritable. There is ample evidence on record to show that the inam lands although impart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive them maintenance allowance under the Inam Rules. It is quite apparent from the course of dealings that the inam lands at Kasba Indore and Mauja Palashiya Hana and other inam properties in the hands of the common ancestor Raghunath Rao which devolved upon defendant No. 1 Purushottam Rao were nothing but an ancestral impartible estate. Under the scheme of the Code there was a drastic change brought about not only in the nature of the tenure of inam lands but also in the mode of succession. S.158(1)(b) of the code provides: 158. Bhumiswami-(1) Every person who at the time of coming into force of this Code, belongs to any of the following classes shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this code, namely: (a) ** ** ** ** ** (b) every person in respect of land held by him in the Madhya Bharat region as a Pakka Tenant or as a Muafidar, Inamdar, or Concessional Holder, as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007(66 of 1950) ; The plain language of s.158(1)(b) effected a complete extinction of the inam rights followed by simultaneous c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... joint estate of the undivided Hindu family. In the following illuminating passage Sir Dinshaw Mulla observes: The keynote of the whole position, in their Lord ships view, is to be found in the following passage in the judgment in the Tipperah(1) case: Where a custom is proved to exist, it supersedes the general law, which however, still regulates all beyond the custom. Impartibility is essentially a creature of custom. In the case of ordinary joint family property, the members of the family have (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity, (3) the right of maintenance and (4) the right of survivorship. The first of these rights cannot exist in the case of an impartible edate, though ancestral from the very nature of the estate. The second is incompatible with the custom of impartibility as laid down in Sartaj Kumari s case(2) and the first Pittapur case(3) and so also the third as held in the second Pittapur case(4). To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate though ancestral is clothed with the incidents of selfacquired and separate prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inam 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 primogeniture governed by the Jagir Manual, Chapter II, rr.2 and 3 did not per se destroy its nature as joint family property or render it the separate property of the last holder so as to destroy the right of survivorship; 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 an intention, express or implied on the part of the junior members of the family to renounce their succession to the estate. The learned Additional District Judge during the course of his judgment has held on consideration of the evidence that there was no partition in the joint family as alleged by defendants 1 and 2 and that finding has not been reversed by the High Court in appeal. The learned Additional District Judge has referred to several well-known decisions of the Privy Council dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on before the Privy Council in Bhagwan Singh s case, supra. The Privy Council observed that though the tenure of a protected thekedari was impartible 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 same time: The Act recognises that leasehold interests, though impartible, may nevertheless be joint family property of the thekedar and his family. This was in consonance with the view expressed by Sir Bipin Krishna Bose, Addl. J.C. in Fagwa v. Budhram(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 Prasad(2) J. Sen, J. hold that 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 member of the joint family would be entitled to a share in the theka and to be maintained out of it. In Chandanlal v. Pushkarraj(ILR [1952] Nag. 318), Kaushalendra Rao, J. speaking for the Court observed: It has always been the accepted view that the grant of protected status to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a Thekedar and to restrain transfers and impose impartibility and primogeniture. Even though the Act of 1917 enacted about private partitions and arrangements, the law was merely declaratory of family custom as is apparent from a perusal 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 Muslims and others. The rules of impartible estates as understood in Hindu law cannot, therefore, be made applicable and the analogy is apt to be misleading. Similar question arose in Mani Ram v. Ram Dayal, supra, and Smt, Pilanoni Janakram v. Anandsingh Sakharam, supra. The decision in Mani Ram s case is of some 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) Act, 1951 which provided that where the proprietary rights held by a protected thekedar vest in the State under s. 3, the Deputy Commissioner may reserve to such proprietor the rights of an occupancy tenant in the whole or part of the home-farm land and shall determine the rent thereon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dar in raiyati rights under s.54(1) of the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951, the Court held that such settlement must enure to the benefit of the bhogra holders under a family arrangement since the 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 Bisto Desai s case, supra. There, the question was whether the plaintiff being the holder for the time being of the Kundgol Deshgat estate which was an impartible estate, the succession to which was governed by the rule of lineal primogeniture, was entitled to remain in full and exclusive possession and enjoyment of the watan lands resumed under s. 3(4) of the Bombay Pargana Kulkarni Watans (Abolition) Act, 1950 and s. 4 of the Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955 which had been regranted to him as an occupant thereof under ss. 4 and 7 of the Acts respectively. It was held that the plaintiff s contention ran counter to the scheme of the Bombay Hereditary Offices Act, 1874 and was against settled legal principles, and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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