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TMI Blog1888 (1) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ectability and dignity of the estate and in support of the members of the family, leaving the whole estate at the time of his death to his successor. The plaint then, stated the gift and prayed for a decree for establishment and declaration of the plaintiff's right by voidance of the deed of gift. The written statements of the defendants alleged that Bhawani Ghulam Pal was proprietor of the estate and authorized to make any transfer, and it would be proved on inquiry that, on account of the separation of the family and other reasons, transfers of every description had been made in the family from of old, without any objection or obstruction being offered. 2. The history of the family is given in the judgment of the High Court. The estates, which are considerable, lie in the parganas of Tanda and Akbarpur, Fyzabad, in the Province of Oudh, and Mahauli and Rasalpur in the district of Basti, in the North-Western Provinces. It would appear that, some 300 years ago, two brothers, named Alakdeo and Tilakdeo, Surajbansi Rajputs, coming, as they alleged, from Kumaon, invaded the locality in which the property is situated, and killing one Kaulbil, the then Rajbhar, appropriated his l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th-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, and that the defendant Raja and the minor plaintiff, being members of a joint Hindu family, and the estate of the raj being joint ancestral property, and the law of the Mitakshara being applicable, the gift, not having been made for necessary purposes, was void and must be set aside. Accordingly the appeal was dismissed with costs. A similar view of the law was taken by the High Court, at Calcutta in Rajah Ramnarain Singh v. Pertum Singh, 11 B. L. R., 397. The great distinction between the doctrine of the Mitakshara in regard to heritage and that of the Dayabhaga, the law in Bengal, is found in ch. 1, see. 1, v. 27, where it is said that property in the paternal or ancestral estate is by birth, and the father is subject to the control of his sons and the rest in regard to the Immovable estate, whether acquired by himself or inherited from his father or other predecessor. In this case, if there were no family custom, the Raja's p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what is done by a person in the enjoyment of a raj or impartible estate in favour of the junior members of the family, who but for the impartibility of the estate would be co-parceners with him. This is a clear opinion that, though an impartible estate may be for some purposes spoken of as joint family property, the co-parcenary in it which under the Mitakshara law is created by birth does not exist. And in Baboo Beer Pertab Sahee v. Maharaja Rajender Pertab Sahee, 12 Moo. I. A., 1, the case of the zamindari of Hansapore in Behar, where the Mitakshara law prevails, an impartible raj, which by family usage and custom descended according to the rule of primogeniture, subject to the burthen of making Babuana allowances to the junior members of the family for maintenance, the question was whether the Raja had power to make a testamentary disposition of the raj to one member of his family to the prejudice of his other male descendants and co-heirs, their Lordships held that the foundation of the supposed restriction on the power of the father to make a will was the community of interest which the members of the family acquired by birth, and said cessante ratione legis cessat et ips ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not exist where there is no right to it. In the Hansa-pore case there was a right to have Babuana allowances as there is in this case, but that was not thought to create a community of interest which would be a restraint upon alienation. By the custom or usage the eldest son succeeds to the whole estate on the death of the father, as he would if the property were held in severalty. It is difficult to reconcile this mode of succession with the rights of a joint family, and to hold that there is a joint ownership, which is a restraint upon alienation. It is not so difficult where the holder of the estate has no son, and it is necessary to decide who is to succeed. In Bengal there is joint family property, but where property is held by the father as its head, his issue have no legal claim upon him or the property except for their maintenance. He can dispose of it as he pleases, and they cannot require a partition. The sons have not ownership while the father is alive and free from defect. Upon his death the property in the sons arises, and with it the right to a partition: Dayabhaga, ch., 1. In the case of the raj of Patcum in Chota Nagpore, which was admitted to be an impartible raj, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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