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TMI Blog1963 (3) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... . Narayana Gajapathi Raj may be regarded as the founder of the family. His son who succeeded to the estate on the death of his father in 1845 can claim to be the real maker of the fortunes of this family. He managed the estate from 1845 to 1879 and during the course of his management he bought a large amount of property, movable and immovable including a large estate in and around Banaras. At his death he left behind him his only son Ananda Gajapathi Raj and his daughter Appala Kondayamba I. Appala Kondayamba I subsequently became the Maharani of Rewa. Ananda Gajapathi Raj died issueless on May 23, 1897. Before his death, he had executed a will bequeathing all his properties to his maternal uncle's son Chitti Babu. Later, on December 18, 1897, Ananda Gajapathi Raj's mother Alak Rajeswari I adopted Chitti Babu to her husband so that as a result of his adoption, Chitti Babu became the adoptive brother of Ananda Gajapathi Raj who had executed a will in his favour before his death. It appears that Chitti Babu had been brought up in the Vizianagram family and when Ananda Gajapathi Raj executed his will, it was anticipated that Chitti Babu would, in due course, be adopted by Alak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... solved. 3. In 1948, the Madras Legislature passed the Madras Estates (Abolition and Conversion into (Ryotwari) Act, 1948 Mad. 26 of 1948) (hereinafter called the Act), and pursuant to the material provisions of the said Act, a notification was published in August, 1949 by which the Vizianagram Estate was taken over by the State as from September 7, 1949. Since the taking over of the estate by the State was apprehended to lead to disputes between the parties, the plaintiff chose to file the present suit No. 495/1949 on the file of the High Court of Madras for partition of the joint family properties. In this suit, he claimed that large number of immovable properties and a substantial number of jewels were impartible, whereas the other properties, both movable and immovable, were partible. The High Court of Madras passed a preliminary decree for partition in this suit on September 11, 1950. This preliminary decree declared that the plaintiff, defendant No. 1 and defendant No. 2 were each entitled to 1/3rd share in the partible properties of the joint family of which they were members along with the deceased Alak Narayana. As the law then stood, defendant No. 2 was not entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned trial Judge held that the estate was impartible by custom while it was in the hands of Viziaram Gajapathi and Ananda Gajapathi and that they had the power to incorporate subsequently acquired immovable properties into the estate. He found that when the estate became impartible under Act II of 1904, the provisions of the Act took within their purview all accretions to the estate made prior to 1897 which had been incorporated into the estate. The question as to whether any of the subsequently acquired properties had been incorporated in the estate was then tried by him as a question of fact and in doing so, he placed the onus to prove incorporation on the plaintiff. He also found that whatever was an integral part of the impartible zamindari of Vizianagram before the notified date within the meaning of the Act, including lands and buildings which had been incorporated with the zamindari, would be governed by the provisions of the Act; the apportionment of lands would be governed by Sections 12 and 47 of the Act, whereas the buildings incorporated with the zamindari prior to the Act would vest in the plaintiff after the notified date and they would not be partible. In the resul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als. Before the High Court, parties argued the same questions of fact and law and pressed their respective claims. The High Court has held that the trial Court was right in coming to the conclusion that the Prince of Wales Market and the permanent leasehold rights in respect of nine villages had been incorporated in the impartible estate. It has also held that the trial Court was right in rejecting the plaintiff's contention that the Bungalow at Ootacamund known, as 'Shoreham' as well as the Bungalow at Coonoor known as 'Highlands' had been incorporated in the estate and were impartible. The High Court, however, differed from the trial Court in respect of three Bungalows, Admirality House, Waltair House and Elk House, and it came to the conclusion that the plaintiff had failed to prove that these properties had been incorporated. That means that these three properties like the bungalow 'Shoreham' at Ootacamund and the Highlands at Coonoor were, according to the Appeal Court, partible between the plaintiff and defendants 1 2. In other words, the plaintiff lost in respect of the said three properties before the Appeal Court. In regard to jewels, the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That, in brief, is the nature of the dispute before us in this group of 8 appeals. 11. Before dealing with the dispute between the plaintiff and defendants 1 2, it may be convenient to deal with the claim of defendant No. 4. She is the widow of Chitti Babu and the grandmother of the plaintiff and defendant No. 1. Parties have agreed before us that her claim which was allowed by the trial Court should be decreed in her favour subject to the modification that the items in appendix B in respect of which defendant No. 4 made a concession in favour of defendant No. 2 should be excluded; in other words, her claim should be confined only to 12 of the items decreed by the trial Court in list A. This concession has been made unconditionally by the plaintiff and defendant No. 2 and conditionally by defendant No. 1. Mr. Kumaramangalam for defendant No. 1 stated that his client was agreeable to have the decree passed in favour of defendant No. 4 restored subject to the modification just indicated, only if defendant No. 4 allows him to take his 1/4th share in the jewels allotted to her by this compromise arrangement. This can be conveniently arranged, says Mr. Kumaramangalam, if defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urya v. Court of Wards (1889) L.R. 26 IndAp 83 : 22 Mad. 383.. Even the right of maintenance as a matter of right is not applicable as laid down in the Second Pittapur Case - Ram 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. 13. 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 may be otherwise in the case of an estate granted by the Crown subject to descent by primogeniture. As Sir Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vable property, would apply to movable property and so, the theory of incorporation cannot apply to such movable property. That, however, is not to say that by a family custom, movable property cannot be treated as impartible. If a family custom is proved in the manner in which family customs have to be proved that certain category of movable property is treated by the family as impartible, that custom will, no doubt, be recognised. That, broadly stated, is the position of Hindu law in respect of impartible property which has been clearly enunciated in the case of Shiba Prasad Singh. 15. There is another aspect of this matter to which reference may be made at this stage. Prior to the decision of the Privy Council in the case of Rani Sartaj Kuari v. Deoraj Kuari (1888) L.R. 15 IndAp 51 : 10 All. 272., it was always assumed that a holder of an ancestral impartible estate cannot transfer or 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. The reason for this view was that in a large number of cases impartible estates were granted on military tenure, and so, if alienati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a family may be treated as impartible. The law in regard to the proof of customs is not in doubt. As observed by the Privy Council in the case of Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar 14 Moo. I.A. 570., it is of the essence of special usages modifying the ordinary law of succession that they should be ancient and invariable; and it is further essential that they should be established to be so by clear and unambiguous evidence. It is only by means of such evidence that the Courts can be assured of their existence, and that they possess the conditions of antiquity and certainty on which alone their legal title to recognition depends. In dealing with a family custom, the same principal will have to be applied, though, of course, in the case of a family custom, instances in support of the custom may not be as many or as frequent as in the case of customs pertaining to a territory or to the community or to the character of any estate. In dealing with family customs, the consensus of opinion amongst the members of the family, the traditional belief entertained by them and acted upon by them, their statements, and their conduct would all be relevant and it is only where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hedule. We are not impressed by this argument. The fact that the Vizianagram estate is shown under two districts is obviously referable to the requirements of administrative convenience. There can be no doubt that as a result of the enquiries made in that behalf, the legislature was satisfied that certain estates in the State of Madras were impartible and the legislature was anxious to declare their impartibility and to prescribe restrictions on their alienations. This became necessary as a result of the Privy Council's decisions to which we have already referred. Therefore, it seems clear that the Vizianagram estate included in the Schedule to this Act must be deemed to include all the impartible property constituting the said estate. The principle of incorporation which has been recognised by the customary law has had its operation after the Sanad was granted and before the Act of 1904 was passed, and if by the operation of the said principle subsequently acquired properties had, in fact, been incorporated by the holder of the zamindari for the time being with the impartible estate, that would have formed an integral part of the estate and would be included in the Vizianagram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed, and the Tribunal shall pay to the Government such value from out of the compensation deposited in its office under s. 41, sub-s. (1). It is common ground that the buildings in respect of which the present argument has been urged fall under s. 18(4). Section 18(4) reads as under :- Every building other than a building referred to in sub-sections (1), (2) and (3) shall, with effect on and from the notified date, vest in the person who owned it immediately before that date; but the Government shall be entitled : (i) in every case, to levy the appropriate assessment thereon; and (ii) in the case of a building which vests in a person other than a landholder, also to the payments which such person was liable immediately before the notified date to make to any landholder in respect thereof, whether periodically or not and whether by way of rent or otherwise, in so far as such payments, may accrue due on or after the notified date. 20. Mr. Setalvad suggests that the buildings falling under s. 18(4) vest in the person who owned them immediately before that date and that takes in the members of the plaintiff's family. He relies on the fact that according to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides for the apportionment of compensation in the case of certain impartible estates, and the class of persons who are entitled to claim apportionment is limited by s. 45(2)(a) and (b). If the construction for which Mr. Setalvad contends is accepted, it will lead to this anomalous result that whereas the apportionment of compensation can be claimed by the narrower class of persons specified by s. 45, a much larger class of persons would be entitled to claim the benefit of s. 18(4). That obviously could not have been the intention of the legislature. Therefore, we are satisfied that the Courts below were right in holding that defendants 1 and 2 cannot claim the benefit of s. 18(4). 22. That takes us to the question as to whether the Appellate Court was right in its conclusions on the issues raised by the contentions of the respective parties in regard to incorporation of buildings in the impartible estate. In this connection, we will first deal with the pleas raised by defendants 1 2. Mr. Setalvad contends that the courts below were in error in holding that the Prince of Wales Market built at Vizianagram forms part of the impartible estate. This market was constructed by Vij ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t some of the reasons set out in the judgment of the Court of Appeal are inconclusive. But there are two considerations which have weighed in our minds in dealing with this aspect of the matter in the present appeals. The first consideration is that the question as to whether a particular immovable property has been incorporated with the impartible estate or not is ultimately a question of fact; no doubt, the decisive test being one of intention, and both the courts have concurred in holding that the Market must be held to have been incorporated with the impartible estate. Besides, there are two outstanding facts in respect of this Market which cannot be ignored. It has been built on a site admittedly belonging to the estate, and it has been built to afford a public amenity to the citizens of Vizianagram. It is not likely that in 1876 when this Market was built by Vijayaram Gajapathi he could have thought of the market as a profit yielding business; he must have thought of it as a project undertaken by him in his capacity as a zamindar responsible for the well-being of the citizens of Vizianagram and in that sense, at the very time that he thought of building the Market, he must ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed executed by Chittibabu in 1912 also shows that Chittibabu recognised that the lease-hold rights formed part of the impartible estate and the conduct of the trustee who took up management of the estate supports the same conclusion. A portion of two of the said villages was acquired by the Government for the construction of a railway crossing between the village of Alamanda and the town of Vizianagram. The proceedings taken for the apportionment of compensation show clearly that the two rival claimants for compensation were the Raja of Bobbili and the Raja of Vizianagram, and that the dispute was settled on the basis that the lands had reverted to the Vizianagram Samsthanam subject to the annual charge of ₹ 22,568/-. It is common ground that all these villages are surrounded by the other estate villages and that the officials in their correspondence have always treated the leasehold rights as forming part of the estate. These facts clearly indicate that the courts below were right in accepting the plaintiff's case that the villages formed part of the impartible estate. 24. The next point which has been urged before us by Mr. Setalvad as well as Mr. Sastri on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y agree expressly or impliedly to continue to observe a custom necessitated by the condition of things existing in primitive times after that condition had completely altered. Therefore, the principle embodied in the expression 'cessat ratio cessat lex' does not apply where the custom outlives the condition of things which gave it birth. That is why we think, the contention raised on the ground that there was no justification for regalia in early times at all and that if initially there was any justification, it ceased after the abolition of the Zamindari Estates, cannot be upheld. 26. The main attack against the finding of the Court of Appeal, however, proceeds on the basis that Chittibabu took the whole of the estate as a devisee under the will executed by Ananda Gajapathi Raj and not as an adopted son of Vijayaram Gajapathi Raj. We have already noticed that Ananda Gajapathi had executed a will on July 23, 1896 bequeathing the whole of his property to Chittibabu and that Chittibabu was subsequently adopted on December 18, 1897. In other words, the will of Ananda Gajapathi spoke from May 23, 1897 when he died and the argument is that before Chittibabu was adopted by Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's title fully admitted the validity and the binding character of his adoption by Maharani Alak Rajeswari to her husband. Therefore, it is perfectly clear that when Chittibabu came in possession of the property and had to establish his title to it, he relied more prominently on his adoption than upon the will executed in his favour by Ananda Gajapathi. When the circumstances under which the said will was executed and the adoption of Chittibabu which followed are taken into account, the attitude adopted by Chittibabu can be easily understood and appreciated. He was brought up by Alak Rajeswari from his childhood and even Ananda Gajapathi anticipated that he would be adopted by Alak Rajeswari since Ananda Gajapathi had lost his wife and had no son. The adoption deed executed by Alak Rajeswari clearly shows that Chittibabu was treated as the member of the family from the start. Therefore, after Chittibabu entered the family as the adopted son, all the members of the family believed that the line continued without interruption and Chittibabu and Maharani of Rewa and all others looked upon the property as belonging to the Vizianagram family which was then held by the adopted member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ider whether the evidence adduced by the plaintiff is sufficient to prove the custom pleaded by him in regard to the 38 jewels. Some of this evidence is prior to 1897, but the most important piece of evidence is subsequent to 1897. The first document on which the plaintiff relies is the will of Ananda Gajapathi himself (Ext. P-6). In this will, Ananda Gajapathi bequeathed all his movable and immovable property to Chittibabu subject to the other liabilities mentioned in the will. In describing the properties the testator refers to the movable and immovable property of the Samsthanam as well as his personal property together with all rights, titles, privileges, honours and insignias of the family. It would be noticed that the properties of the Samsthanam which are impartible properties are described as both movable and immovable and that shows that the testator recognised the existence of a family custom which treated some movable properties as being impartible since they belonged to the Samsthanam. 29. The deed of adoption (Ext. P-7) executed in favour of Chittibabu recites the material facts leading to his adoption and refers to the authority conferred on the adoptive mother by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich she had advanced to the Samsthanam, certain jewels had been kept with her. Out of these jewels, she described five jewels as constituting State Regalia; they are Sarpesh Nakshatra Joth, Jayamala, Emerald Bujuaband, Diamond Bujuaband and Emerald and Pearl necklace in the central pendant on which is inscribed the name of her mother in several languages. The first of these five has not been identified but the four others have been identified and these four have been described by the Maharani as forming part and parcel of the Samsthanam and impartible and inalienable property. It is true that by paragraph 6 she purports to impose an obligation on Chittibabu not to alienate the said items of State jewellery as also two jewels of her own which she had specified in the said paragraph. Now, it is clear that at the time when this will was executed by the Maharani of Rewa, there was no dispute pending in regard to the existence of any State jewellery; her relations with Chittibabu were good and the statement that certain jewels formed part of the State jewellery was not in her interest. In fact, she was disposing of all the property in favour of Chitti Babu, and the statements made by he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impartible estate and described to the holder of it. The survey report also shows that the ornaments which were claimed to be regalia and intended for ceremonial use were, in fact, kept together with the kiritam and its pattam which are admittedly ceremonial. Therefore, we are satisfied that, on the whole, the courts below were right in coming to the conclusion that both prior to 1897 and subsequent to 1897 when Chittibabu was adopted, the family has always and consistently treated some ceremonial jewels as forming part of the regalia which belonged to the holder of the Zamindari estate. 34. That naturally raises the question about the identity of these jewels, and the finding recorded by the Appeal Court in this matter rests principally on two documents. The first is the will executed by the Maharani of Rewa and the other is an entry in the list of jewels made by Mr. Fowler which has been signed by Mr. V. T. Krishnamachari and defendant No. 4. We have seen how the Maharani of Rewa referred to five jewels constituting the regalia of the Zamindari Estate. The list signed by Krishnamachari and defendant No. 4 shows that on the occasion of the installation ceremony of Alak Nara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the will that the said ornament formed part of the regalia of the Zamindar. We are free to confess that the evidence about the identity of the jewels which can be safely taken to constitute regalia in the present case, does not appear to us to be as satisfactory as it should have been; but we are reluctant to interfere with the conclusion of the Court of Appeal, because in our opinion, the evidence fully establishes the existence of custom in the family even after Chitti Babu was adopted which treated certain ceremonial jewels as constituting regalia. Now, which items of these jewels and ornaments were treated as impartible by custom is a pure question of fact. In regard to 36 out of the 38 jewels, both the courts have held concurrently against defendants 1 2 and in favour of the plaintiff, and in respect of the two jewels which have been added to the list by the Court of Appeal, viz., items 129 and 360, the Court of Appeal has proceeded on the basis that the recital in the will of Maharani of Rewa should not have been rejected by the trial Court because there was no corroboration to it. On the whole, we do not think that a case has been made out for our interference with the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss towards the end of the 19th century; and it added that it should even be possible to co-relate the residence of the Zamindar with the use of the building for Zamindari purposes, a test which, if satisfied, would prove incorporation. while proceeding to deal with the question on this basis, the trial Court did not think it necessary to require that the plaintiff should have adduced some evidence to show that Zamindari business was transacted at any of these buildings and it concluded with the observation that there was nothing in the evidence on the record to indicate any contrary intention on the part of Ananda Gajapathi or even that of his successors, though the intention of the successors may not be so very material as evidence. It is clear that this approach adopted by the trial Judge of placing the onus partly on the defendants is clearly erroneous. We are, therefore, not inclined to interfere with the conclusion of the Court of Appeal in regard to the three bungalows in question. In regard to the two remaining bungalows, both the courts below have made concurrent findings against the plaintiff and we see no reason to allow the plaintiff to challenge that finding on evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esidencies specified. In other words, the preamble refers to the whole of the property consisting of the impartible estate and other properties, and that would take in the houses in question. Then the settlor provides that he is settling the properties in trust in the manner mentioned in the document for the benefit of his eldest son so that he may have the same kind and nature of estate right and interest in the said Zamindari, its accretions and appurtenances and other properties hereby settled upon him as he would have if the same were now to devolve upon him from the settlor by right of inheritance according to the said law and custom of primogeniture subject, nevertheless, to the payment of maintenance and other allowances to the Raja and some other members of the family as hereinafter provided and for the purpose of providing for the payment of all the creditors of the said settlor as hereinafter mentioned. The argument is that by creating a trust in favour of his eldest minor son, the settlor has incorporated all the non-impartible immovable properties into the Zamindari subject to the liabilities specified by the document. Mr. Pathak also relies on the fact that there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.P. No. 2631/1962. By this petition, defendant No. 1 seeks to raise additional grounds to which reference must be made before we part with these appeals. Mr. Kumaramangalam has invited our attention to the fact that there are certain properties which still remain to be dealt with and there are certain inaccurate statements in the judgment under appeal which need to be corrected. In its judgment, the Appeal Court has observed that it is contended for the Rajkumar that Ex. P-132 cannot be deemed as containing a list of buildings owned by the Samsthanam, for it is pointed out that even the Vizianagram Fort and the connected buildings which admittedly belonged to the estate were not included therein. Mr. Kumaramangalam points out that the reference to the Vizianagram Fort as admittedly constituting a part of the estate is wrong. In fact, the question about the character of the Vizianagram Fort is pending before the learned Subordinate Judge, Vishakhapatnam in O.S. No. 120 of 1948. In that suit defendant No. 1 has specifically claimed that the Fort is not an impartible property but belongs to the joint family and, therefore, he has a 1/3rd share in it. It is conceded by Mr. Pathak that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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