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TMI Blog1981 (8) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. PC. The proceedings were, however, later converted into proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. At the time of proceedings under Section 145 Cr. PC. 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. 7. 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 and the grain or the value thereof. A relief for mesne profits to be ascertained in subsequent proceedings was also claimed. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had fraudulently got Sigsigi and Patihari villages inserted in the Khorposh deed or that this deed was illegal. The defendant 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, 10. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. First we take up appeal No. 209 of 1970 filed by Bhaiya Ramanuj Pratap Deo, heir and legal representative of deceased plaintiff. 14. 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 - (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. 15. Section 6 of the Act provides: 6. When a male H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the 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 Mahals. 20. The following propositions are clearly deducible from this Regulation: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emed 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. 23. 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. 24. It is nobody's case that there has been any partition between the plaintiff and the defendant. The j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 28. 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. 29. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake 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. 32. The observations extracted above are self-explanatory and do not support the contention of the appellant, rather they support the defendant-respondent. 33. 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. 34. 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 43 All. 228 PC: Zamindari being the ancestral property of the joint family, though impartible, the successor falls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 successions. Unlike spes succession's, 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 separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds 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 case (supra) this Court reiterated the same legal position. 39. For the foregoing discussion this appeal must fail. 40. This leads us to the other appeal filed by the defendant. The contention of the learned Counsel for the defendant-appellant in 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. 41. As regards the first contention it is open to a co-sharer to remain in poss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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