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TMI Blog1912 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court of first instance as complete, satisfactory and overwhelming. The founder was a Kanauj Brahmin, who migrated from the North-Western Provinces and settled at Maliara in the District of Bankura. The family has acquired considerable landed property, and the eldest male member is locally styled as Raja. In the Court of first instance, an issue was raised upon the question, whether the Maliara estate is impartible and succession thereto is governed by the rule of primogeniture. This issue was, however, subsequently expunged and the suit proceeded to trial. The Subordinate Judge found, with regard to the first property mentioned in the schedule to the plaint, that it was the ancestral property of the mortgagor, and decreed the claim is so far as that property was concerned. As regards the third property, mentioned in the schedule, he held that it was the self-acquired property of the mortgagor and dismissed the claim in respect thereof. When the matter was taken on appeal to the District Judge, he held that the sixth issue ought not to have been expunged and remitted the case to the original Court for decision of the question raised therein. The Subordinate Judge held that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sons would get maintenance either in cash or from property. The testator then proceeds to state that each of his sons other than the eldest would get lands yielding a net annual profit of ₹ 2,000 and a house to be built at a cost of ₹ 5,000, Then follows an important clause to the effect that the property given for maintenance and the houses for residence, which each son will get, will be held and enjoyed by him by right down to his sons, grandsons and their sons in succession. The first property now in dispute was received by the ninth defendant under this clause of the Will, and the question in controversy is, whether it became his self-acquired property or formed ancestral property subject to the rules of Mitakshara law. To determine this question, it is essential to investigate, in the first instance, whether the Maliara estate, of which it formed part, was impartible and descendible according to the rule of primogeniture. As already stated, there has been no satisfactory determination of this question, and both the parties are responsible for this result. The sixth issue specifically raised the question, but was expunged by consent of parties. The District Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if it were necessary to determine this question for the purposes of the appeal, it would, in my opinion, be essential to remand the case to the Court of first instance for a fresh investigation. But as I shall presently show, the appellant cannot succeed even on the assumption that the Maliara estate is impartible and governed by the rule of primogeniture. 2. Let us assume for a moment that the Maliara estate is an impartible zemndari descendible according to the rule of primogeniture. The decision of their Lordships of the Judicial Committee in Sartaj Kuari v. Deoraj Kuari 15 I.A. 51; 10 A. 272 shows that the holder for the time being is competent to alienate the estate without the consent of the next taker, because the eldest son of the holder is not a joint owner; in other words, as there is no joint ownership, there is no right to partition and no restraint upon alienation. The subsequent decision in Venkata Surya Mahipati Rama Krishna v. The Court of Wards 26 I.A. 83; 22 M. 383; 8 O.W.N. 415 shows that an impartible zamindari is not inalienable by Will or otherwise, by virtue only of its impartibility, and in the absence of proof of some special family custom attaching to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o recover the property. It was farther held that if a partition was made by the father on the footing that the property was partible property, although in point of law there was a disposition made by the father, there was no doubt that the father intended that the quality of the ancestral estate should remain. On the other hand, it was ruled in Jagmohan Das v. Sir Mangaldas 10 B. 528 that a son to whom his father bequeathed his self-acquired property by Will took it under the Will, and not by inheritance, and, that as property devised by Will was held by Hindu Law to be received as gift, such property was self-acquired in the hands of the son and was not subject to partition in his life-time at the suit of the son of the latter. To the same effect is Nanabhai v. Achratbai 12 B. 122 which, however, recognises the position that where a father indicates by his Will that his sons should take his self-acquired property jointly, such property would, undoubtedly, be regarded as ancestral. The current of decisions in Bombay has, however, gone back, as is shown by the cases of Ahmedbhoy v. Sir Dinshaw M. Petit 11 Bom. L.R. 366; 3 Ind. Cas. 124 and Chabildas v. Ramdas 11 Bom. L.R. 606; 3 Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Janki Bai 29 A. 354 at p. 363; A.W.N. (1907) 77: 4 A.L.J. 257 while in Madras, the tendency has been in favour of the inference that the character of the property was ancestral; Tara Chand v. Reeb Ram 3 M.H.C.R. 50 at p. 55; Nagalingam v. Ramchandra 24 M. 439; 11 M.L.J. 210. The decision in Muddun Gopal v. Ram Buksh 3 M.H.C.R. 50 at p. 55 has been treated in this Court as good law for half a century and was expressly followed in Hardai Narain v. Haruck Dhari Singh 12 C.L.R. 104 the decision wherein was subsequently affirmed by the Judicial Committee: Nanomi Babuasin v. Modhun Mohun 13 I.A. I; 13 C. 21. The decision of the Full Bench in Modhoo Dyal v. Golbur Singh 9 W.R. 511 does not touch the question raised before us and so also the decision in Bawa Misser v. Rajah Bishen Prokash 10 W.R. 287. I am not un-mindful of the observation of Sir Barnes Peacock to counsel in the course of argument in Pauliem Valoo v. Pauliem Sooryah 1 M. 252 ; 4 I.A. 109 but this can hardly be taken as a decision upon the point which did not directly arise in that case; nor can the decision in Rajah Ram Narain Singh v. Pertum Singh 20 W.B. 189; 11 B.L.R. 397 be deemed to contain any definite pronounceme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his life-time, given it to his son for maintenance, or the latter had obtained it from his eldest brother, the holder of the impartible estate, in lieu of maintenance as a matter of right. The decisions of their Lordships of the Judicial Committee in Sartaj Kuari v. Deoraj Kuari 26 I.A. 83; 22 M. 383; 8 O.W.N. 415 and Venkata, Surya Mahipati. Rama Krishna Rao v. The Court of Wards 26 I.A. 83; 22 M. 383; 8 O.W.N. 415 recognise that the holder of an impartible estate has the right to alienate the estate without the consent of the next taker; but these decisions do not, by necessary implication, involve the conclusion that if the holder of the impartible estate, by a testamentary disposition or otherwise, carves out a portion thereof and grants it to his younger son for purposes of the maintenance of the son and his descendants, such property becomes the self-acquired property of the grantee, liable to be capriciously alienated by him to the detriment of the grandsons of the testator. It is not contended, and in view of the decision of the Judicial Committee in Durgadut v. Rameswar 36 C. 943; 10 C.L.J. 233; 13 C.W.N. 1013 (P.C.); 6 M.L.T. 68; 11 Bom. L.R. 901; 6 A.L.J. 847; 4 Ind. Cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff, who is said to have been born after the execution of the mortgages, is not entitled to relief in respect of what would be his share in ancestral property. This question does not appear to have been pressed before the District Judge, and there is no substance in it. It is well-settled that where a Mitakshara, father has made an alienation without necessity and without the consent of sons then living, it would not only be invalid against them but also against any son born before they had ratified the transaction, and no consent given by them after his birth would render it binding upon him: Hurodoot Narain Singh v. Beer Narain 11 W.R. 480 and Bunwari Lal v. Daya Sunker 13 C.W.N. 815; 1 Ind. Cas. 670. Substantially to the same effect is the decision in Ponnambala Pillai v. Sundarappayyar 20 M. 354; 7 M.L.J. 240 although one need not take the extreme view adopted by the Pundits of the Madras Sadar Court in Sooba Pudten v. Janga Miah (1851) M.S.D.A. 3. I am not unmindful that the contrary view was taken by the Allahabad High Court in Chuttan Lal v. Kallu 33 A. 283; 8 A.L.J. 15; 8 Ind. Cas. 719 but the later view of the same Court is in harmony with that adopted by this Court: Tul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant can no more rely on the plaintiffs' original case than the plaintiffs can on the defendants. It must be remembered that the plaintiffs are members of the family and, therefore, presumably know whether their family estate is impartible or not. The principal defendants, on the other hand, are strangers to the family and their denial of impartibility really amounted to no more than to putting the plaintiffs to proof of their case. Where a defendant merely puts a plaintiff to proof of the usage on which he bases his title, I do not see that he is precluded from saying at a later stage that he will not insist on proof of the usage, but will accept the plaintiff's case on the point. But it is altogether another matter for a plaintiff, who presumably knows the truth as to the usage and bases his case on it, to turn round and gay: I find it more convenient for my title to deny the usage and, therefore, I will accept the defendant's contention. 8. As regards the question whether a son, to whom his father bequeaths self-acquired property by Will, takes under the Will, or by inheritance, I incline to the view that he takes by Will but I cannot press my view in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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