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TMI Blog1924 (6) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... estate, the succession to which has devolved by family and local custom according to the rule of lineal primogeniture from ancient times. The estate was settled by the British Government with Raja Jagannath, the ancestor of the parties at a revenue of ₹ 4,000 in 1777. Raja Satrughna got the Dhalbhum estate according to the ancient family and local custom, on his death dispute arose as to succession to the estate between the defendant who is his nearest heir, and the plaintiff who claimed the estate under his will. 4. Satrughna, as stated above, executed his will on the 11th May 1905, and died on the 1st March 1916. The plaintiff on the 6th April 1916, applied for probate of the will. The defendant contested the will, but it was found to be genuine and probate was ordered to be granted on the 30th May 1917. In the meantime the defendant obtained possession of the estate, and his name was registered under the Land Registration Act by the Deputy Commissioner Singbhum overruling the plaintiff's objections. The order was upheld by the Commissioner, and finally by the Board of Revenue on the 13th July 1917 who held that in the jungle mahals there was no custom of divisibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. The documents were referred to and discussed by learned Counsel on both sides at the hearing of the appeal, the question of their admissibility being reserved for decision after the arguments were over. 9. We have considered the question and for reasons recorded in the order sheet dated to-day we have admitted them (except one) in evidence and directed them to he marked as exhibits. 10. The first question for consideration is whether Raja Satrughna had power to dispose of the Dhalbhurn estate by his will. 11. It is admitted that the parties are governed by the Mitakshara School of Hindu Law, that the Dhalbhum Raj is impartible and that the succession to it takes place according to the rule of lineal primogeniture. It is found that the defendant was joint in estate with Raja Satrughna; the learned Counsel for the plaintiff res-respondent does not press his objections to that finding and there is ample evidence in support of it. So that if there was no power of alienation the defendant is entitled to succeed by right of survivorship. The Court below has held that it is "settled law now that in case of impartible zamindaries governed by the Mitakshara Law, the holder of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , except that the estate is held by a single member. In the present case however the question is not one of succession, but the power of testamentary disposition over an impartible estate. So far as the question of the power of alienation is concerned the leading case is that of Sartaj Kuari v. Deoraj Kuari [1888] 10 All. 272. In that case the owner of an impartible raj made a gift of 17 villages forming part of the estate in favour of his younger wife. Thereupon a suit was brought by his son (by his first wife) for declaration that the gift was invalid on the ground that the Raja had no power to alienate any part of the raj estate. The trial Court decided that the deed of gift was invalid. On appeal the High Court of Allahabad held that "they were not prepared to admit at any rate so far as the law governing these (the North-West) Provinces is concerned, except where it is clearly overridden by well-recognised family custom, an absolute disposing power in one member of a joint family over an estate which has some of the incidents at least of joint family property." Sir Richard Couch in delivering the judgment of the Judicial Committee observed: It is admitted that the Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a restraint upon alienation." The case therefore, establishes the following propositions: (i) In an impartible estate governed by the rule of lineal primogeniture the co-parcenary which under the Mitakshara Law is created by birth does not exist, and the son is not a co-sharer with the father. (ii) Property in ancestral estate acquired by birth under the Mitakshara Law is so connected with the right to a partition that it does not exist when there is no right to it. (iii) For the purpose of determining who are entitled to succeed, the estate must be considered as the joint property of the family. 17. The next case is the Pithapur case: Sri Raja Rao Venkata v. Court of Wards [1899] 22 Mad. 383, in which it was distinctly laid down that an impartible estate is not inalienable by will or otherwise by will by virtue only of its impartiality, in the absence of proof of some special family custom or tenure attaching to the zamindari and having that effect. That is a case directly in point, and unless it can be distinguished is binding upon us. It is contended on behalf of the appellant that there was no jointness in estate in that case. It is necessary therefore to examine t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior title to that by devise. It is not applicable here, where co-parcenary between the Rajah and the adopted son is not admitted, but the contrary is held. In the present case, according to the decision of Sartaj Kuari v. Deoraj Kuari [1888] 10 All. 272, the appellant did not become a co-parcener with the Rajah. If the Raja had power to alienate he might do it by will, and the title by the will would have priority to the title by succession." 20. It is contended that the Madras case was distinguished on the ground that there was co-parcenary in that case whereas in the Pittapur case, co-parcenary between the Raja and the adopted son was " not admitted but the contrary is hold " which shows that there was no co-parcenary. But the adoption was admitted, and although the adopted son quarrelled with the Raja and was living separate from him, he was receiving maintenance (₹ 2,000 per month) from the Raja. That being so there can be no doubt that there was jointness in fact. It seems to us that what was meant was that in law there was no co-parcenary between the adopted son and the Rajah, as their Lordships say "in the present case, according to the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth does not exist and the reason for restraint upon alienation therefore ceases to exist in the case of an impartible estate. 24. There are repeated admissions of Satrughna and other members of the family that the estate has been held from the time of remote ancestors, as a joint ancestral impartible Raj. Satrughna died joint in estate with the defendant (Protap), and if it were ordinary ancestral property there is no doubt that Protap would have taken the estate by survivorship. 25. It is accordingly contended on behalf of the appellant that if, as held in a series of cases, the succession to an impartible Raj also goes by survivorship, the right by survivorship being prior to a right under a will which operates only from the death of the testator there was no property of Satrughna upon which the will could operate. Reference is made to the case of Lukshman Dada Naik v. Ramchandra Dada Naik [1880] 5 Bom. 48 and Vital Butten v. Yamenamma [1874] 8 M.H.C.R. 6. Both the cases related to an ordinary Mitakshara family. In the first case it was held by the Judicial Committee that under the Mitakshara law as received in Bombay, a father cannot by will make an unequal distribution of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intenance according to custom, and before Sartaj Kuan's case [1888] 10 All. 272, it was held that impartibility does not destroy jointness. Reference was made to the case of Tekait Doorga Persad v. Tekaitini Doorga Konwari [1879] 4 Cal. 190, where it was observed that impartibility does not destroy its nature as joint family property, or render it the separate estate of the last male holder so as to destroy the right of another member of the joint family to succeed upon his death in preference to those who would be his heirs if the property were separate, and also to the observations in the case of Naraganti v. Venkata [1882] 4 Mad. 250, such an estate though possessed by one of the members of the family is the joint property of the family and in the event of death passes by survivorship. 29. The principle of survivorship, however, which governs succession in ordinary joint family under the Mitakshara, has to be [followed, according to the decisions since Sartaj Kuan's case [1888] 10 All. 272 in the case of impartible estates only for a particular purpose, viz., to find out a successor, and it is only for the purpose of determining who is entitled to succeed, that the esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral law, viz., that by birth he had a right to maintenance out of the property constituting the Raj which right followed the property into the hands of a third party. Lord Dunedin, in delivering the judgment, referred to the view taken by the High Court in Sartaj Kuari's case [1888] 10 All. 272 and observed (at page 783):--"But the decision of the Board which binds their Lordships made that view no longer tenable. It settled that in an impartible zemindary there is no coparcenary, and consequently no person existed who as co-parcener could object to alienation of the whole subject by the de facto and de jure holder. The judgment was followed and applied to this very Raj in Venkata Surya Mahtpati Ram Krishna Rao v. Court of Wards [1899] 22 Mad. 383. The import of these decisions was in their Lordships' view correctly stated by Sir L Jenkins in the case of Bachoo v. Mankorebai [1904] 29 Bom. 51. ' It has now been definitely decided that in impartible properties there is no co-parcenary." Then, after referring to the right to maintenance as an inherent quality of the right of co-parcenary that is, of common property, observed (at page 784): " that the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been drawn to Mayne's Hindu Law, 9th Edition page 769 where it is stated " whether a co-parcenary is to be assumed solely for the purpose of ascertaining the next heir or whether it is a living principle by which the succession is to be regulated is an extremely difficult question, and when it comes before the Privy Council, that tribunal will have to resolve the difficulty created by the fact that the doctrine of survivorship and the right to testamentary disposition cannot coexist." That question however must be taken as settled, and having regard to the state of the authorities, we are bound to hold that holder of an impartible estate has the power of alienating it by will, and that therefore Raja Satrughna had the power to dispose of the Dhalbhum Estate by the will. Custom of inalienability: 35. If according to law, an impartible Raj is not inalienable, it is for the defendants to prove that by custom the estate is inalienable. Before dealing with the evidence on the point we may point out the nature of the evidence required to prove custom in such cases. 36. In the case of Sartaj Kuari v. Deoraj Kuari [1888] 10 All. 272 their Lordships in considering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, the founder of the family, came from Dharangar in the Western provinces in the year 638 B.S. and established himself in the Dhalhaum Raj. Reference is also made to the statement of Satrughna contained in his question dated 29th March 1887, where he stated that 24 generations back his ancestors migrated to this part of the country from Dharanagar and the family was governed by the Mitakshara. As for Mangobinda's statement, it was not accepted by the Court, and even if it be accepted, it merely shows that the family migrated to this part of the country centuries ago. It does not show since what time the family came to possess property, nor how long the estate is impartible and governed by lineal primogeniture. Whether the family migrated about seven centuries ago (638 B.S.) or not, as to which of course there is no evidence beyond the statement of Raja Mangobinda made in 1859 or that a Satrughan made in 1887, it appears as stated in the judgment of this Court dated the 5th August 1893 in the appeal of Rani Siromani against Satrughna that, the members of the family looked upon themselves as Kshatriyas who came many generations ago from some place in the North-West Provinces. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce can be drawn in favour of any custom to inalienability from the fact that Raja Ram Chandra I did not execute any will and that Nursingh succeeded to the Raja. It does not appear that the Raja was aware of the Rani being enceinte when he died. If he was aware of it, there was the possibility of her giving birth to a son, in which case there could be no question of bequeathing the estate to the widow, But of course there was no knowing that she would give birth to a son, even if the Raja was aware that she was enceinte and we must consider the question from the point of view that the Raja was not aware that she was with child or that she would give birth to a son. It does not appear when the succession of Hikim Nursingh took place. But Jagannath I who was in the womb when Raja Ram Chandra I died, was installed as Raja in 1767, as appears from the District Gazetteer (Singbhum, page 27). Raja Ram Chandra must have therefore died some time before 1750. Wills were unknown at that time, at any rate in that part of the country. But apart from that, the contention that the Raja did not execute any will in favour of his wife because of the conaoionsness that he could not alienate the esta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat some provisions would certainly have been made by Raja Ram Chandra for his widow and widowed daughter-in law, but this contention assumes that no provision was made. It is for the party, setting up the custom to show that no provision was made and there is no such evidence. There is no suggestion in the pleadings nor in the evidence of witnesses that no provisions were made for members of the family. The widow and the widowed daughter-in-law would under the family custom be entitled to maintenance. The amount of maintenance is not left to the caprice of the next Raja but is regulated by well-known custom in these ancient impartible estates, and though there is no evidence as to what maintenance they got the evidence with regard to some widows in other cases to be presently noticed, shows that widows of the family were amply provided for under the family custom. (In the course of his further discussion of the evidence, His Lordship observed:) 48. With regard to the agreement set up by Beer Chandra by which it was alleged that Jaganath I appointed him his successor, it appears that after the death of Raja Jagannath I appointed him his successor, which took place some time betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or matter had arisen." In the present case Siromani had set up a will. The controversy therefore as to the custom of making a will had already arisen when Mohesh filed his objections. The statement therefore does not come under clause (4) of Section 32 of the Evidence Act. 51. It is contended however on behalf of the appellant that it comes under Section 49 or else under Section 13 of the Act. Section 49 (so far as is material for the present case) runs as follows:-"When the Court has to form an opinion as to the usages and tenets of any body of men or family-the opinion of persons having special means of knowledge thereon are relevant facts." There is no difficulty when a living wit-ness states his opinion; the question however arises whether the opinion of such a person who is dead can be proved even though it does not come under Section 32 of the Evidence Act. 52. In the case of Garuradhwaja Prasad v. Superundhwaja Prasad [1900] 23 All. 37, the Judicial Committee observed:-"By Section 49 when the Court has to form an opinion on (inter alia) the usages of any family, the opinions of persons having special means of knowledge thereon are also relevant. But by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements made by deceased persons. The statements of deceased persons on the question of family usage are no doubt relevant facts, but in the first place it does not appear that the statements of deceased persons deposed to by the witnesses were made after any controversy as to the usage had arisen. 58. In the next place as pointed out by Lord Davey in the case of Garududhwaja the opinion of a living witness though grounded upon the statements of deceased persons would be admissible, it would be so, as independent opinion and not repetition of hearsay. We do not think that their Lordships laid down that statements made by deceased persons after the controversy had arisen and therefore inadmissible under Section 32 are admissible under Section 49 of the Act. In the case of Ekradeswar Singh v. Janeshwari Babuasin A.I.R. 1914 P.C. 76 the Judicial Committee referring to certain evidence as to custom observed: Some statements deposed to by witnesses who were called and some of the documents which were put in were not admissible as evidence in this suit. It seems to have been overlooked at one period of the suit that evidence oral or documentary as the statements of a deceased person a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of the nine zemindars who held the estate prior to the first defendant either left sons or widows for whom they would ordinarily desire to make some provisions, and the peculiar custom which is shown to prevail in regard to succession must have imparted to that desire more than its ordinary strength as an inducement to alienation. Notwithstanding this, there has been no sale or gift for more than three centuries and ought to be considered together with such other evidence of inalienability as there is on record." 65. The custom in that case (Dayadi Pattani) was of a very peculiar nature. The succession did not devolve upon the heir according to Mitakshara law, nor on the eldest son according to the rule of primogeniture, but on the Dayadi or cousin of the deceased polayagar who was senior in age and who was descended from one of the three brothers who originally formed a joint Hindu family. It appears that in five cases the deceased polayagar left sons and in three left widows, but in all the senior Dayadi took the estate to their exclusion. In such cases the zamindar would naturally desire to make some provision for his own son or widow when according to the peculiar cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hum family, the parties adduced evidence of custom in some other cognate estates. They are referred to as jungle mehals or nine mehals. 69. [His Lordship then referred to this part of the evidence and in the course of his discussion remarked: ] Barabhum 70. Out of the documents admitted in evidence in this Court is a judgment of the Sudder Dewany Adalat dated the 4th June 1804 in a litigation between Madho Singh, plaintiff, and Ganga Gobinda Singh, defendant. It related to the Barabhum estate one of the nine mahals (in the jungle mehals). Madho Singh's case was that he was the son of the patrani (the senior wife) though he was younger in age to Ganga Gobinda who was the son by a junior wife, and further that his father had made a will or hebanama in his favour, and he was accordingly entitled to succeed. 71. (After briefly alluding to the course of the litigation in the lower stages, his Lordship continued:) The Sadar Dewany Adalat held that the custom of the succession of the son of a patrani junior in age in preference to an elder son by a junior wife was conflicting in some of the mehals contiguous to Barabhum and that the plaintiff had failed to prove the custom in hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n such a way ( " I conceive " ) that it was not of any value. Lastly the Collector was not considering the custom of not making a will, and it does not appear that he had any special knowledge of custom. 72. It is true that in course of time some of the nine mehals or jungle mehals came to be governed by the Dayabhaga and others by the Mitakshara and it is contended by the appellant that with regard to those governed by the Dayabhaga the same rigour with regard to inalienability could not possibly be expected. But with regard to impartible estates there is no difference, upon the authorities, between Dayabhaga and Mitakshara so far as the question of alienation is concerned, and it is not established that there has been any definite and uniform custom of inalienability either in the jungle mehals or in the nine mehals. 73. Reference was made on behalf of the appellant to certain passages in the judgment of the Board of Revenue dated the 13th July 1917 in the land registration proceedings between the present parties where it was stated that there was no evidence of the estate ever having been transferred by will out of the line of descent to the next heir " that Dha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... di of the Raj was fighting with the British. He was deposed and Jagannath placed on the guddi, but he too began to fight with the British. He was deposed and Dimal alias Baikuntha was put in his place. But he had neither money nor support and Jagannath was again placed on the guddi, and the first settlement of the estate was made with him in 1777. (See Taslinama, Ex. 46). In 1800 the estate was permanently settled with Raja Ram Chandra and after his death, Baikunta Nath renewed the kabuliyat in December 1821. 78. But, although the Jungle mehal chiefs seem to have exercised semi-sovereign powers British power was established and the Raj might have been in its inception in the nature of a principality as most, if not all, impartible estates were in their inception, and although some of the Rajas fought with the British when they were fires established in this country, there was nothing military, after the settlement with Jagantath in 1777. The Taslinama of that year was on the usual conditions on which grants; were made to zamindars There was nothing military or feudal in it. Certain police duties were imposed on the zamindars of Jungle mehals by Regulation XVIII of 1805 which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etime of Ram Chandra III and remained under management until 1899 when it was released to Satrughna who got possession. It again came under the Act in 1905 upon the application of Madhusudan (the father of the defendant), notwithstanding Satrughna's objections. Madhusudan made the application on the 10th March 1905; it was re-submitted on the 11th April 1905. Satrughna's petition of objection was filed on the 8th May 1905. The notification under Act VI of 1876 was made on the 2nd August 1905. In the meantime, on the 11th May 1905, Satrughna made his will. He died on the 1st March 1916. The estate remained in charge of the Encumbered Estates Act authorities from 2nd August 1905 until October 1920 when it was taken charge of by the Court of Wards.. 85. At the time when Satrughna made his will (11th May 1905) the estate had not come under the Act, but it was so at the time of his death (1st March 1916) and so continued subsequently up to October 1920, Section 3 (thirdly) of the Act provides that "so long as such management continues the holder of the said immovable property and his heir shall be incompetent to mortgage, charge, lease, or alienate their immovable property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te his property") may make an application to the Commissioner for applying the provisions of the Act, and the Commissioner may appoint a manager and vest in him the management of the estate. The proviso to the section directs postponement of the order until enquiry. Section 2-A empowers the Deputy Commissioner to order production of accounts and documents with the object of finding out the debts and liabilities and the income of the estate. Section 3 lays down that on the publication of an order under Section 2 the following consequences will ensue: 90. First, all proceedings which may then be pending in any civil Court in British India or in any revenue Court in Bengal in respect to such debt, or liabilities, shall be barred; and all processes, executions and attachments for or in respect of such debts and liabilities shall become null and void. 91. Secondly, so long as such management continues, the holder of the said property and his heir shall not be liable to arrest for or in respect of the debts and liabilities to which the said holder was immediately before the said publication subject, or with which the property so vested as aforesaid or any part thereof was at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, such property shall not be restored to such holder but shall be retained by the manager for restoration to the heir of such holder in due course. Section 12-A provides that (1) where the possession and enjoyment of property is restored under the circumstances mentioned in the first or the third clause of Section 12 to the person who was the holder of such property when the application under Section 2 was made, such person shall not be competent, without the previous sanction of the Commissioner, (a) to alienate such property or any part thereof in any way, or (b) to create any charge thereof extending beyond his lifetime. (3) Every alienation and charge made or attempted in contravention of Sub-section (1) shall be void; (4) the Deputy Commissioner may make an enquiry to ascertain whether any holder of property has made or attempted to make an alienation in contravention of Sub-section (1); and (5) if he is satisfied after enquiry that such holder has made or attempted to make any such alienation, he may report to the Commissioner requesting that the provisions of the Act be re-applied to his case, and the Commissioner may publish a fresh order under Section 2 re-appointing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (is in fact it did) until the debts and liabilities were discharged. But management of the estate is one thing and the right to the estate is another. 98. It is true the Act recognizes only the heir and not the devisee, and the restoration of the estate is to be made to the heir on the death of the holder. But under Section 23, the Civil Courts in Chota Nagpur have jurisdiction to entertain and dispose of suits relating to the succession to immovable property. "Succession" would include intestate as well as testamentary succession, so that although the heir would be restored to possession and a person claiming under a testamentary disposition would have to establish such claim in the civil Court, the possession of the heir would be subject to the result of such suit. 99. Under Section 2 of the Act what is vested in the manager is the management of the property, and the provisions of the Act are all directed towards securing the effective control of the estate by the manager. The holder of the estate is prohibited from mortgaging, charging, leasing, or alienating his immovable property; or entering into any contract which may involve him in pecuniary liability and the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at effect in the Act, and the proviso contained in Section 23 goes against that view. 103. It is contended that the object of the Act is to preserve the estate belonging to families of political or social importance and that the object would be frustrated if testamentary dispositions were allowed. It is true Section 2 (thirdly) lays down that the consent of the Local Government shall not be given in the case of any holder who has "entered upon a course of wasteful extravagance likely to dissipate his property" unless such holder belongs to a family of political or social importance but that is not the only case, because under the same section such consent may be given where the Government "is satisfied that it is desirable that such consent should be given." 104. It is pointed out on behalf of the respondent that whenever it is intended to restrict alienation by will it is expressly so provided as for instance in the Madras Court of Wards Acts (Section 34 of Act I of 1902), and in the Bombay Act, Section 38 of Bombay Act of 1905, (see also Section 37 of United Provinces Court of Wards Act IV of 1912 (though Act XXIV of 1870. Oudh Talukdar's Act (upon which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e management of the estate and do not affect the rights of the holder of properties, we think that the restrictions as to alienation refer only to alienation inter vires having present operation, and not to testamentary dispositions. We have already pointed out that a person claiming under a testamentary disposition cannot interfere with the management of the estate, if such management continues after the death of the holder, and that such a person can only get the estate after the management comes to an end. For all these reasons we are unable to hold that the will of Satrughna executed at a time when his estate had not come under the management of the Act is invalid. 109. On the whole we think that the decree of the Court below should be affirmed. The appeal is accordingly dismissed with costs. 110. The plaintiff has claimed the amounts paid to the defendants for maintenance as mesne profits. There is no doubt that the defendant is entitled to maintenance and we are not inclined to interfere with the order for mesne profits made by the Court below, viz,, that they should come out of the Dhalbhum estate and that the defendant shall not be personally liable for the same. 111. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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