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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 ..... ily 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 by will. 5. It appears that before the death o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 the zemindary can alienate the estate by will, gift, mortgage, sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 Raj is impartible, and that there is a custom of succession by primogeniture. The question how far the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate 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 the facts of the case. It appears that the Raja of Pittapur adopted the plaintiff who was the natural born son of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Sartaj Kuari v. Deoraj Kuari [1888] 10 All. 272 the appellant did not become a co-parcener with the Rajah. If there was no jointness in fact there was no necessity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 ancestral property whether moveable or immovable, that although one of several co-parceners under the same law has the power of alienating his undivided share in ancestral e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 estate is to be treated as the property of the joint family. 30. The question, therefore, is no longer res Integra, and we are bound to hold having regard to the decisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering 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 to maintenance, so far as founded on or inseparable from the right of co-parcenary begins where coparcenary begins and ceases where coparcenary ceases. 32. It is contended on behalf of the appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the custom of inalienability observed:- The fact that there is no evidence of a sale of any portion of the estate is in the plaintiff's favour, but this is not sufficient. The absence of evidence of an alienation w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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. There is no doubt also that the bulk of the estate has remained intact for many generations. 41. We were referred to a passage in the judgment of the Judicial Committee in the case of Rana Mahtab Singh v. Badan Singh A.I.R. 1922 P.C. 146, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 estate, proceeds upon the assumption that a man dying without issue would naturally leave his estate to his widow. That may be natural feeling with persons of other nationalities or even with some of the present day Hindus specially in towns. But w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 between 1800 and 1805, a dispute arose as to who should succeed him, viz., Beer Chandra who set up the agreement, or Ram Chandra the eldest son of Raja Jagannatha. 49. (His Lordship then dealt with the evidence as to this dispute and continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 Section 60 if oral evidence refers to an opinion or the grounds on which that opinion is held it must be the evidence of the per. son who holds that opinion on those grounds. Their Lordships think it is admissible for a living witness to state his opinion on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersy 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 as to the custom in a family is not admissible if it appears that such statements were made after a controversy has arisen. 59. Reference was made to clause (7) of Section 32, but that clause refers to statements contained in any deed, will or other document w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement 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 custom they would be excluded, and the estate taken by a Dayadi-a distant agnate, and in these circumstances the absence of any sale or gift for more than three centuries was held to be relevant evidence. The observations of the learned Judges in that case cannot apply to the Dhalbhum family where in the majority of case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 his family. The right of the defendant as the eldest son was accordingly maintained, and it was held that the plaintiff should obtain a maintenance allowance. The defendant Ganga Gobinda challenged the genuineness of the Will. He stated that the Raja on the morning of which date he died, was qui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Dhalbhum is one of the jungle mehals, that in the early days there was no custom of devisability by will, and from this it may be presumed in the absence of rebutting evidence that this custom still maintains. But although as already stated the absence of any transfer by will is a circumstance in favour of non-alienability, what is to be proved is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77. (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 assigned to the numerous ghatwals under the Raj but they were subsequently discharged from those obligations. 79. The Hundwa case, Satya Narain Singh v. Satya Niranjan Chakravarty A.I.R. 1924 P.C. 5, referred to on behalf of the appellant related to a ghatwali tenure the incidents of which were materially different. It was found that the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 or any part thereof or to grant a valid receipt for the rents and profits arising or accruing therefrom. 86. It is contended by the appellant that the word alienate though used after the words 'mortgage' and ' charge etc. should not be taken ejusdem generis so as to apply only to transfers having present operation, but shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 time of the said publication charged, other than debts due, or liabilities incurred, to Government, nor shall their movable property be liable to attachment or sale under process of any civil Court in British India or any revenue Court in Bengal for or in respect of such debts and liabilities other than as aforesaid; and 92. Thirdly, so long as such management continues. (a) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 a manager and vesting in him the management of the whole or any portion of the property of such holder. 94. Section 12-A was introduced into the Act by the Amending Act III (B.C.) of 1909. The provisions of that section do not apply to Satrughna and that for two reasons. In the first place the section was enacted after Satrughna made his will on the 11th May 1905 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 property is exempt from attachment and sale so long as such management continues. Without such prohibitions the management could not proceed, nor could the scheme for discharge of the debts and liabilities be carried out. But a testamentary disposition cannot interfere with the management by the manager. The Act creates a sort of administration of the immovable estate of a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 Bengal Act VI is based) does not contain any restriction as to will. This appears to be so, but the statutes in other provinces do not give us much assistance in construing Bengal Act VI of 1876, as each Act must be construed with reference to its own provisions. 105. The Allahabad High Court in the case of Muhammad Sayed v. Muhammad Ismail (1910) 33 All. 1176 held that a will is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. The plaintiff denied that the defendant was joint with the deceased, and made no offer to pay maintenance. In the circumstances we do not interfere with the order for costs made by the Court below. The costs of the plaintiff in the Court below as well as in this Court will come out of the Dhalbhum estate and the defendant will not be personally liable for the same. 112. The (cross-objections a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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